Long before the coming of the Bill of Rights in written Constitutions, the common law has had the greatest regard for the personal liberty of the individual. In order to safeguard that liberty, the remedy of habeas corpus was always available to persons deprived of their liberty unlawfully. This ancient writ has been incorporated into the modern Constitution as a fundamental right and enforceable as other rights protected by virtue of their entrenchment in those Constitutions. This article aims to bring together the various understanding of habeas corpus at common law and the principles governing the writ in common law jurisdictions. The discussion is approached through a twelve-point construct thus providing a brief conspectus of the subject matter, such that one could have a better understanding of the subject as applied in most common law jurisdictions. |
Search result: 103 articles
Article |
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Journal | Erasmus Law Review, Issue 2 2021 |
Keywords | Habeas corpus, common law, detainee, Consitution, liberty |
Authors | Chuks Okpaluba and Anthony Nwafor |
AbstractAuthor's information |
Article |
Governments as Covid-19 Lawmakers in France, Italy and SpainContinuity or Discontinuity |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | Covid-19, emergency legislation, executive lawmaking, parliaments, decree-laws and ordinances |
Authors | Elena Griglio |
AbstractAuthor's information |
Executive dominance in Covid-19 lawmaking has been a major trend worldwide. Governments have leveraged emergency prerogatives to boost their legislative powers, often sidelining the role of parliaments. The impact of executive lawmaking on fundamental liberties has been unprecedented. However, government’s capacity to exercise full legislative powers is not absolutely new to many European countries. |
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Does the Fight Against the Pandemic Risk Centralizing Power in Pakistan? |
Journal | European Journal of Law Reform, Issue 4 2020 |
Keywords | PTI government, 18th amendment, 1973 Constitution, lockdown, economic impact |
Authors | David A. Thirlby |
AbstractAuthor's information |
When the pandemic struck Pakistan, there was a high-profile divergence between how the federal government and the provincial government of Sindh responded. This points to a tension between the need for a national approach to tackle the pandemic and the prerogative of the provinces to deal with health issues under its devolved powers. These powers were the result of the 18th amendment, which restored a parliamentary federal democracy. Power has also been decentralized from executive presidents to parliamentary forms of government. However, parliamentary systems centralize power within the executive: a trend which the pandemic has reinforced. The article will explore the various interplays although it is the economic landscape which will prove most challenging. Although the emergence of a national centralized approach to combat the pandemic points to a weakening of the devolution process and therefore the reasoning behind the 18th amendment, the situation is more complex which this article seeks to explore. |
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The Windrush ScandalA Review of Citizenship, Belonging and Justice in the United Kingdom |
Journal | European Journal of Law Reform, Issue 3 2020 |
Keywords | Windrush generation, statelessness, right to nationality, genocide, apologetic UK Human Rights Act Preamble |
Authors | Namitasha Goring, Beverley Beckford and Simone Bowman |
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This article points out that the UK Human Rights Act, 1998 does not have a clear provision guaranteeing a person’s right to a nationality. Instead, this right is buried in the European Court of Human Rights decisions of Smirnova v Russia, 2003 and Alpeyeva and Dzhalagoniya v. Russia, 2018. In these cases, the Court stretched the scope of Article 8 of the European Convention on Human Rights, 1953 on non-interference with private life by public authorities to extend to nationality. The humanitarian crisis arising from the Windrush Scandal was caused by the UK Government’s decision to destroy the Windrush Generation’s landing cards in the full knowledge that for many these slips of paper were the only evidence of their legitimate arrival in Britain between 1948 and 1971. |
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The ILC Draft Articles on Crimes Against HumanityAn African Perspective |
Journal | African Journal of International Criminal Justice, Issue 2 2020 |
Keywords | Africa, norm creation, crimes against humanity, colonial crimes, official immunity |
Authors | Alhagi B.M. Marong |
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Africa’s contribution towards the development of the International Law Commission (ILC) Draft Articles should not be assessed exclusively on the basis of the limited engagement of African States or individuals in the discursive processes within the ILC, but from a historical perspective. When analysed from that perspective, it becomes clear that Africa has had a long connection to atrocity crimes due to the mass victimization of its civilian populations during the colonial and postcolonial periods and apartheid in South Africa. Following independence in the 1960s, African States played a leading role in the elaboration of legal regimes to deal with international crimes such as apartheid, or in the development of accountability mechanisms to respond to such crimes. Although some of these efforts proved unsuccessful in the end, the normative consensus that was generated went a long way in laying the foundations for the Rome Statute of the International Criminal Court, which, in turn, influenced the conceptual framework of the ILC Draft Articles. This article proposes that given this historical nexus, the substantive provisions and international cooperation framework provided for in the future crimes against humanity convention, Africa has more reasons to support than to oppose it when negotiations begin at the United Nations General Assembly or an international diplomatic conference. |
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The Temporal Effect and the Continuance in Force of the Treaty of TrianonA Hundred Years Later |
Journal | Hungarian Yearbook of International Law and European Law, Issue 1 2020 |
Keywords | peace treaties, Trianon Peace Treaty, termination of treaties, temporal effect of international treaties, law of international treaties |
Authors | Norbert Tóth |
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The 1920 Trianon Peace Treaty ended World War I between Hungary and its belligerents. Nonetheless, one hundred years have passed since then, yet this peace treaty is still unsettling to many, causing misbelief, hatred, anger and misunderstanding both in Hungary and its neighboring countries. To unearth the temporal aspects of the Trianon Peace Treaty, more precisely, to identify exactly what obligations remain in force following this rather hectic century, it is indispensable to study the temporal effect of this agreement. The present article aims at arriving at a conclusion in relation to several misbeliefs held with respect to the Trianon Peace Treaty as well as the issue of its termination. |
Research Note |
Caretaker Cabinets in Belgium: A New Measurement and Typology |
Journal | Politics of the Low Countries, Issue Online First 2020 |
Keywords | caretaker government, Belgium, cabinets, political crisis |
Authors | Régis Dandoy and Lorenzo Terrière |
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Belgium is probably the world’s best known case of where caretaker governments reside. Yet a clear scholarly definition and measurement of this concept is missing. Based on a detailed analysis of the Belgian federal cabinets, this research note explores the main characteristics and measures the length of the various caretaker periods. We find that Belgium was governed for no less than 1,485 days by a caretaker government between 2007 and 2020, which equals more than four full calendar years. This research note also presents a novel typology of caretaker periods based on the institutional and political practice within the Belgian legislative and executive branches. This typology can be used to assess caretaker periods at other levels of government as well as in other countries in order to improve our understanding of the many ‘faces’ that a caretaker government can take on. |
Article |
Re-examining the Relationship between Parliament and the Law Reform CommissionsAn Australian Perspective |
Journal | European Journal of Law Reform, Issue 2 2020 |
Keywords | law reform commissions, legislative process, parliamentary scrutiny, Australia |
Authors | Jacinta Dharmananda |
AbstractAuthor's information |
In Australia, statutory law reform commissions answer to parliament, albeit through a senior government minister. But once the commission has fulfilled its obligations to parliament, what are the obligations of parliament to scrutinize, or even to consider, the commission’s recommendations? Further, what are its obligations in relation to proposed legislation that contains law reform proposals? This article addresses those questions in an Australian context, with a focus on the generalist law reform commissions. |
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Journal | Netherlands Journal of Legal Philosophy, Issue 1 2020 |
Keywords | Concepts, Contextualism, Essentially Contested Concepts, Legal Theory, Freedom |
Authors | Dora Kostakopoulou |
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Socio-political concepts are not singularities. They are, instead, complex and evolving contextures. An awareness of the latter and of what we need to do when we handle concepts opens up space for the resolution of political disagreements and multiplies opportunities for constructive dialogue and understanding. In this article, I argue that the concepts-as-contextures perspective can unravel conceptual connectivity and interweaving, and I substantiate this by examining the ‘contexture’ of liberty. I show that the different, and seemingly contested, definitions of liberty are the product of mixed articulations and the development of associative discursive links within a contexture. |
Article |
Law Reform in IrelandImplementation and Independence of Law Reform Commission |
Journal | European Journal of Law Reform, Issue 4 2019 |
Keywords | law reform, statute law revision, better regulation, access to legislation, lawyer’s law |
Authors | Edward Donelan |
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This article describes the origins and work of the Law Reform Commission in Ireland. The model follows that in Common Law countries. Its work includes both substantive law reform and statute law revision (weeding out spent or unused statutes and undertaking consolidation or other work to make statute law more accessible.) The work of the Commission focuses on ‘lawyers’ law’ and, therefore, avoids subjects that could be politically controversial. Consequentially, the bulk of its recommendations are accepted and translated into legislation. |
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Journal | Erasmus Law Review, Issue 3 2019 |
Keywords | Mercosur, European Union, regionalism, integration, international organisation |
Authors | Ricardo Caichiolo |
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This study is focused on the evaluation of successes and failures of the Common Market of the South (Mercosur). This analysis of Mercosur’s integration seeks to identify the reasons why the bloc has stagnated in an incomplete customs union condition, although it was originally created to achieve a common market status. To understand the evolution of Mercosur, the study offers some thoughts about the role of the European Union (EU) as a model for regional integration. Although an EU-style integration has served as a model, it does not necessarily set the standards by which integration can be measured as we analyse other integration efforts. However, the case of Mercosur is emblematic: during its initial years, Mercosur specifically received EU technical assistance to promote integration according to EU-style integration. Its main original goal was to become a common market, but so far, almost thirty years after its creation, it remains an imperfect customs union. |
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Journal | Erasmus Law Review, Issue 4 2019 |
Keywords | Dutch model BIT, foreign direct investment, bilateral investment treaties, investor-to-state dispute settlement, sustainable development goals |
Authors | Alessandra Arcuri and Bart-Jaap Verbeek |
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In 2019, the Dutch government presented a New Model Investment Agreement that seeks to contribute to the sustainability and inclusivity of future Dutch trade and investment policy. This article offers a critical analysis of the most relevant parts of the revised model text in order to appraise to what extent it could promote sustainability and inclusivity. It starts by providing an overview of the Dutch BIT (Bilateral Investment Treaty) programme, where the role of the Netherlands as a favourite conduit country for global FDI is highlighted. In the article, we identify the reasons why the Netherlands became a preferred jurisdiction for foreign investors and the negative implications for governments and their policy space to advance sustainable development. The 2019 model text is expressly set out to achieve a fairer system and to protect ‘sustainable investment in the interest of development’. While displaying a welcome engagement with key values of sustainable development, this article identifies a number of weaknesses of the 2019 model text. Some of the most criticised substantive and procedural provisions are being reproduced in the model text, including the reiteration of investors’ legitimate expectation as an enforceable right, the inclusion of an umbrella clause, and the unaltered broad coverage of investments. Most notably, the model text continues to marginalise the interests of investment-affected communities and stakeholders, while bestowing exclusive rights and privileges on foreign investors. The article concludes by hinting at possible reforms to better align existing and future Dutch investment treaties with the sustainable development goals. |
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Journal | Erasmus Law Review, Issue 1 2019 |
Keywords | choice of court, commercial court, lawyers’ preferences, survey on lawyers, international court |
Authors | Erlis Themeli |
AbstractAuthor's information |
France, Germany, Belgium, and the Netherlands have taken concrete steps to design and develop international commercial courts. Most of the projects claim to be building courts that match the preferences of court users. They also try to challenge England and Wales, which evidence suggests is the most attractive jurisdiction in the EU. For the success of these projects, it is important that their proposed courts corresponds with the expectations of the parties, but also manages to attract some of the litigants that go to London. This article argues that lawyers are the most important group of choice makers, and that their preferences are not sufficiently matched by the new courts. Lawyers have certain litigation service and court perception preferences. And while the new courts improve their litigation service, they do not sufficiently addressed these court perception preferences. |
Article |
Unamendability and Constitutional Identity in the Italian Constitutional Experience |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | Unamendability, constitutional identity, republic, counterlimits, European integration, Italy |
Authors | Pietro Faraguna |
AbstractAuthor's information |
The article explores the historical roots of the explicit unamendable clause(s) in the Italian Constitution. Following, it explores the scholarly debate over the interpretation of unamendable provisions. The article investigates theories of implicit unamendability of the Italian Constitution, and, in particular, it analyses the crucial role played by the Constitutional Court of Italy (ICC) and the principles that characterize Italian constitutional identity. Furthermore, the article explores the other side of constitutional identity, namely the theory of ‘counterlimits.’ The ICC specified that constitutional identity not only sets a limit to constitutional amendment powers but also sets ‘counterlimits’ to the entry of external norms (i.e., supranational and international law) in the domestic legal system. Finally, the article draws some conclusions and argues that the two sides of constitutional identity, although legally and logically independent, mutually reinforce each other and, ultimately, reinforce the counter-majoritarian nature of unamendability. |
Article |
A View on the Future of Judicial Review of Constitutional Amendments in TurkeyAn Invitation to Judicial Dialogue |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | basic structure doctrine, Constitutional Court of Turkey, constitutional identity, judicial dialogue, immunity amendment, unconstitutional constitutional amendments |
Authors | Ali Acar |
AbstractAuthor's information |
In this article, I discuss and analyse the Turkish case concerning judicial review of constitutional amendments in light of a recent decision by the Constitutional Court of Turkey (CCT). In the said decision, the CCT rejected carrying out judicial review over a controversial constitutional amendment, which lifted MPs’ parliamentary immunity. This decision urges to consider its implications for the possible future cases. I refer to comparative constitutional law with the hope to shed more light on the Turkish example and grasp it comprehensively. In this respect, I illustrate the most crucial arguments developed by the Supreme Court of India (SCI), the Bundesverfassungsgericht (BVG), and the Conseil Constitutionnel (FCC) in their case law. Based on the comparative account, I draw some lessons for the CCT and invite it to get into a judicial dialogue with other supreme/constitutional courts with regard to the issue. |
Article |
Judicial Review of Constitutional Amendments in TurkeyThe Question of Unamendability |
Journal | European Journal of Law Reform, Issue 3 2019 |
Keywords | judicial review of constitutional amendments, constitutional unamendability, judicial activism, competitive authoritarianism, abusive constitutionalism |
Authors | Ergun Özbudun |
AbstractAuthor's information |
This article deals with the judicial review of constitutional amendments, which has been a hotly debated constitutional and political issue in Turkey, particularly with regard to the unamendable provisions of the constitution. Since its creation by the Constitution of 1961, the Turkish Constitutional Court has followed a markedly activist and tutelarist approach regarding this issue and annulled several constitutional amendments arguing that they violated the unamendable provisions of the Constitution. Recently, however, the Court adopted a self-restraining approach. This shift can be explained as part of the political regime’s drift towards competitive authoritarianism and the governing party’s (AKP) capturing almost total control over the entire judiciary. |
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Consensus Democracy and Bureaucracy in the Low Countries |
Journal | Politics of the Low Countries, Issue 1 2019 |
Keywords | consensus democracy, bureaucracy, governance system, Lijphart, policymaking |
Authors | Frits van der Meer, Caspar van den Berg, Charlotte van Dijck e.a. |
AbstractAuthor's information |
Taking Lijphart’s work on consensus democracies as our point of departure, we signal a major shortcoming in Lijphart’s focus being almost exclusively on the political hardware of the state structure, leaving little attention for the administrative and bureaucratic characteristics of governance systems. We propose to expand the Lijphart’s model which overviews structural aspects of the executive and the state with seven additional features of the bureaucratic system. We argue that these features are critical for understanding the processes of policymaking and service delivery. Next, in order to better understand the functioning of the Netherlands and Belgium as consensus democracies, we provide a short analysis of the historical context and current characteristics of the political-administrative systems in both countries. |
Article |
Post-Legislative Scrutiny as a Form of Executive OversightTools and Practices in Europe |
Journal | European Journal of Law Reform, Issue 2 2019 |
Keywords | scrutiny of law enforcement, ex-post impact assessment, parliamentary oversight of the executive, post-legislative scrutiny |
Authors | Elena Griglio |
AbstractAuthor's information |
Parliaments’ engagement in post-legislative scrutiny can be considered either as an extension of the legislative function or within the framework of the oversight of the executive. This article makes use of the latter view to assess how parliaments in Europe approach post-legislative scrutiny and to which extent this function can be regarded as a form of executive oversight. Although rules and practices of parliaments in this realm are remarkably heterogeneous, the focus on some selected parliaments (Italy, France, Germany, Sweden, and the European Parliament) reveals three different conceptual categories. In the ‘basic’ approach (passive scrutinizers), parliaments limit their role solely to the assessment of the ex-post scrutiny performed by the government and external agencies. Differently, parliaments willing to engage in a more proactive approach might choose either to act on an informal basis, establishing ad hoc research/evaluation administrative units (informal scrutinizers) or to address post-legislative scrutiny in a formal and highly institutionalized manner (formal scrutinizers). As a matter of fact, the practise of parliaments often combines characters of different categories. While in all of these approaches post-legislative scrutiny shows potential for executive oversight, only the third can potentially lead to a kind of ‘hard’ oversight. |
Article |
Politics and PragmatismThe Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Keywords | Constitutional Court of the Russian Federation, European Court of Human Rights, Russia |
Authors | Bill Bowring |
AbstractAuthor's information |
After the highly controversial YUKOS judgment of 19 January 2017, on 23 May 2017 the Constitutional Court of the Russian Federation (CCRF) delivered a warmly received judgment, in which the provisions of the administrative offences legislation prohibiting stateless persons to challenge the reasonableness of their detention in special detention facilities was found to be unconstitutional. The CCRF was addressed by leading Russian human rights advocates. The judgment referred not only to Article 22 of the Russian Constitution but also to the analogous Article 5 of the ECHR. The judgment paid special attention to case-law: Guzzardi v. Italy (1980), Kemmache v. France (1994), Kurt v. Turkey (1998), Aleksei Borisov v. Russia (2015), and Z.A. v. Russia (2017), as well as Alim v. Russia (2011), Shakurov v. Russia (2012) and Azimov v. Russia (2013). Indeed, Strasbourg jurisprudence has played a central role in the development of the CCRF’s jurisprudence since Russia’s ratification of the ECHR in 1998. This article analyses and seeks to explain what in the author’s view is the CCRF’s serious engagement with a body of pan-European quasi-constitutional law, with which Russian jurists feel surprisingly comfortable and experienced. Is there really a cultural incompatibility between Russian and ‘Western’ approaches to human rights law? |
Article |
Three Tiers, Exceedingly Persuasive Justifications and Undue BurdensSearching for the Golden Mean in US Constitutional Law |
Journal | European Journal of Law Reform, Issue 2-3 2018 |
Keywords | Equal protection, franchise, fundamental rights, intermediate scrutiny, rationality review, reproductive rights, right to vote, strict scrutiny, substantive due process, undue burden, US constitutional law |
Authors | Barry Sullivan |
AbstractAuthor's information |
When government action is challenged on equal protection grounds in the US, conventional wisdom holds that the courts will analyse constitutionality under one of three standards of review: rational basis, intermediate scrutiny and strict scrutiny. In substantive due process cases, two standards are applied: rational basis and strict scrutiny. In fact, careful study shows that the levels of scrutiny are actually more plastic than conventional wisdom would suggest and have shifted over time. In addition, courts sometimes confuse matters by appearing to introduce new tests, as when Justice Ginsburg characterized the government’s burden in Virginia v. United States, 518 U.S. 515 (1996) in terms of “an exceedingly persuasive justification”. Finally, while the Court originally applied strict scrutiny review to reproductive rights in Roe v. Wade, 410 U.S. 113 (1973), the Court has subsequently applied an ‘undue burden’ test in that area. A similar trend can be seen in voting rights cases. While the Court long ago characterized the right to vote as “fundamental … because preservative of all rights”, Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), and the modern Court initially applied strict scrutiny to voting rights, the Court has now moved away from strict scrutiny, just as it has in the reproductive rights area. This erosion of constitutional protection for voting rights is the central concern of this article. The focus here is on the way these tests have evolved with respect to limitations on the right to vote. The article begins with a description of the three-tiered paradigm and then considers the US Supreme Court’s development of the ‘undue burden’ test as a substitute for the strict scrutiny standard in the reproductive rights jurisprudence. The article then considers the Court’s analogous move away from strict scrutiny in voting rights cases. That move is particularly troubling because overly deferential review may subvert democratic government by giving elected officials enormous power to frame electoral rules in a way that potentially games the system for their own benefit. Building on existing scholarship with respect to reproductive rights, this article suggests a possible way forward, one that may satisfy the Court’s concerns with the need for regulation of the electoral process while also providing the more robust protection needed to protect the right to participate meaningfully in the electoral process. |