2016 Global Review of Constitutional Law

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structure it contemplates”. The Court concluded that the Dáil here had not abdicated its function because the legislation, while not imposing a debt ceiling, contained other constraints on the Minister’s powers. However, it cautioned that the Act was defensible as “a permissible constitutional response to an exceptional situation”. This meant that: It cannot therefore be considered to be a template for broader Ministerial power on other occasions. Indeed it is unlikely that the Oireachtas would concede such wide ranging power in other less pressing circumstances, but if it did, and, for example, a minister or other body was permitted to provide unlimited financial support, and without limitation in time or object, to any commercial entity, then it clearly would not follow from this case that such was constitutionally permissible. This suggests that, while the Court did not endorse the general principle advanced by the plaintiff, it does regard Article 11’s reference to “by law” as importing a broader “legality” requirement that any formal measures relating to financial matters must provide for an adequate degree of legislative involvement. Support for this interpretation of Collins can arguably be found in the other major decision of 2016. Barlow v. Minister for Agriculture concerned a dispute over access by fishermen based in Northern Ireland to mussel seed beds in Irish waters. This had been permitted pursuant to a voisinage agreement based on an exchange of letters between the relevant government departments in Belfast and Dublin in 1965. The legal issue here was whether mussel seed were a “natural resource” within the meaning of Article 10 of the Constitution. This Article requires natural resources to be managed “by law”. The Court concluded that Article 10 did apply, and that this arrangement did not comply with it. It is noticeable, however, that the Court did not confine itself to finding that this exchange of letters did not constitute “law” in a formal sense. Instead, it outlined a more substantive principle of legality which it specifically connected to democratic representation and accountability: The requirement of Article 10.3 of the Constitution for regulation “by law” is not merely a formal procedural provision, important though that would be. In constitutional terms, it means that the Constitution requires that the regulation of natural resources stated to be the property of the State must be the subject of a decision by the representatives of the People who are accountable to them. Legislation is normally required to take place in public (Article 15.8), which carries with it the possibility of public knowledge and debate. In effect, therefore, the Constitution mandates that if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People who can accordingly make their views known. Aside from providing clarity on some of the more rarely-litigated Articles of the Constitution, both Collins and Barlow provide support for the possibility that the Court may be developing a substantive conception of legality which extends beyond the right of an individual to know the law 19 to encompass broader principles of democratic accountability. If this is the case, it may have long-term implications for the separation of powers in Ireland and, in particular, for the legislature’s traditionally submissive relationship to government. That is particularly so given that references to “by law” or “in accordance with law” appear frequently in the constitutional text. CONCLUSION On abortion, on judicial appointments, and on the scope of a possible legality principle, therefore, 2016 was a year of change – but also of continued uncertainty about the form that change will ultimately take. 19 King v. AG [1981] I.R. 223. 102 | I•CONnect-Clough Center
Israel DEVELOPMENTS IN ISRAELI CONSTITUTIONAL LAW Justice Uzi Vogelman, Justice of the Israeli Supreme Court; Nadiv Mordechay, Research Fellow, Hebrew University Faculty of Law; Visiting Doctoral Researcher, NYU school of Law; Yaniv Roznai, Assistant Professor, Radzyner Law School, The Interdisciplinary Center (IDC) Herzliya; Tehilla Schwartz, Undergraduate Student, Hebrew University Faculty of Law ISRAEL INTRODUCTION This review presents key developments in the jurisprudence of the Israeli High Court of Justice (HCJ) in 2016. These developments reflect part of the multifaceted longstanding role of the HCJ in constitutional challenges of the State of Israel which involve complicated dilemmas concerning minorities, emergency laws, prolonged belligerent occupation and recurring armed conflicts, unique rules of citizenship, and the complex relation between religion and state. THE CONSTITUTION AND THE COURT Israel’s constitutional model is based on an incomplete constitution, due to the original decision in the early years of independence not to complete the constitutional design at the time of the establishment of the State, but rather to leave it as an incremental enterprise. The Israeli constitution includes several Basic Laws that regulate the governmental structure and institutions, and the HCJ also has a respectable tradition of judicial protection over the unwritten common-law rights and freedoms. Basic Laws are enacted by the Knesset (Parliament), which holds both legislative and constituent powers. In 1992, the Knesset enacted two Basic Laws on fundamental rights- Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation- that constitute a partially entrenched bill of rights. The HCJ United Mizrahi Bank case asserted the authority of judicial review, comparable to the “Marbury” model. This joint legislative-judicial change, known as the “constitutional revolution”, resulted in the HCJ becoming the central institution in the development of constitutional protection of human rights. Therefore, the Israeli constitutional law story is rather unique as it applies American-style judicial review to primary legislation, yet its constitutional laws are enacted through ordinary legislation procedures, in the British style. Israel is also particularly unique due to the inverse ratio between the thin written constitution and the constitutional role of its court. The HCJ hears petitions about Knesset legislation and administrative decisions as the first instance, and its constitutional review model is very close to an “abstract” review. The HCJ is highly accessible to all types of petitions, maintaining broad individual standing in administrative and constitutional petitions (also from protected populations in Judea and Samarea). For over a decade now, the existence and scope of constitutional judicial review in Israel has been harshly contested. DEVELOPMENTS AND CONTROVERSIES IN 2016 Separation of Powers HCJ 4374/15 The Movement for Quality of Government v. The Prime Minister of Israel (27 March 2016) This case, one of the most prominent of the year, addressed the constitutionality of the“- Gas Outline”, an administrative “outline” decided by the Israeli government regarding gas reservoirs found in Israeli economic 2016 Global Review of Constitutional Law | 103
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I·CONnect-Clough Center 2016 Globa
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Table of Contents 2 INTRODUCTION 3
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A FIRST-OF-ITS-KIND RESOURCE IN PUB
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ABOUT THIS BOOK: ORIGINS, PURPOSE,
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Australia DEVELOPMENTS IN AUSTRALIA
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monwealth or of a State by imprison
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The High Court unanimously dismisse
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ditional judges. 7 All judges are a
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DEVELOPMENTS AND CONTROVERSIES IN 2
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Bangladesh DEVELOPMENTS IN BANGLADE
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It is hoped that the Appellate Divi
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measure of temporary relief to the
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A case may be brought before the Co
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adopting a new rectified administra
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Brazil DEVELOPMENTS IN BRAZILIAN CO
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others, ousting the House Speaker s
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tion to provide the pill to hundred
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of Ministers, the SCC, the SAC, or
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Following a similar logic, the BCC
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Cameroon DEVELOPMENTS IN CAMEROONIA
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Third, on the very critical issue o
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cial interests of the Anglophone co
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THE CONSTITUTION AND THE COURT The
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subsequent to Toonen it was presume
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Chile DEVELOPMENTS IN CHILEAN CONST
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abstract judicial review claim (STC
Page 53 and 54: the case to the corresponding court
Page 55 and 56: law” is especially relevant to Cy
Page 57 and 58: so bad, so reprehensible that is, a
Page 59 and 60: Czech Republic DEVELOPMENTS IN CZEC
Page 61 and 62: multimillionaire. And he owns sever
Page 63 and 64: The Court decided that the law at h
Page 65 and 66: since the late 1980s by the incorpo
Page 67 and 68: number of immigration matters. 20 T
Page 69 and 70: France DEVELOPMENTS IN FRENCH CONST
Page 71 and 72: for priority preliminary ruling on
Page 73 and 74: violation of the Constitution. The
Page 75 and 76: the investigative powers of the Bun
Page 77 and 78: ological paternity,” i.e. they wa
Page 79 and 80: Hungary DEVELOPMENTS IN HUNGARIAN C
Page 81 and 82: ensuring an advantage for the non-r
Page 83 and 84: Court rejected all judicial referra
Page 85 and 86: tem of government and independent c
Page 87 and 88: MAJOR CASES Separation of Powers Hr
Page 89 and 90: India DEVELOPMENTS IN INDIAN CONSTI
Page 91 and 92: Article 19(1) (a) of the Constituti
Page 93 and 94: the relevant persons in charge of t
Page 95 and 96: Indonesia DEVELOPMENTS IN INDONESIA
Page 97 and 98: from Basuki Hariman, a major player
Page 99 and 100: agreement but later decide that the
Page 101 and 102: The Supreme Court was one of two
Page 103: Second, these developments seem to
Page 107 and 108: notice”, whereby if at the end of
Page 109 and 110: force-feeding of hunger-striking pr
Page 111 and 112: the Parliament was in charge of ado
Page 113 and 114: seen and unforeseeable but also sub
Page 115 and 116: CONCLUSION Fifty years after the pu
Page 117 and 118: Kenya 2010 that sought not just to
Page 119 and 120: senate (both of which make up Parli
Page 121 and 122: perhaps the happening that absorbed
Page 123 and 124: THE CONSTITUTION AND THE COURT The
Page 125 and 126: of the provisions of the Code of Cr
Page 127 and 128: Malaysia DEVELOPMENTS IN MALAYSIAN
Page 129 and 130: MAJOR CASES Apostasy and the Jurisd
Page 131 and 132: Preventive Detention The case of YB
Page 133 and 134: as an arbiter of political disputes
Page 135 and 136: an individual was guilty of defamat
Page 137 and 138: Myanmar DEVELOPMENTS IN MYANMAR CON
Page 139 and 140: 2007 when it fully drafted the Cons
Page 141 and 142: people’s fundamental rights and p
Page 143 and 144: From 1976 onwards, since the Europe
Page 145 and 146: concerned judicial construction and
Page 147 and 148: Nigeria DEVELOPMENTS IN NIGERIAN CO
Page 149 and 150: tional circumstances, the President
Page 151 and 152: the constitution to EFCC in the con
Page 153 and 154: political disagreement within this
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Right of boycott vs. right of estab
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Pakistan DEVELOPMENTS IN PAKISTANI
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Nonetheless, the Supreme Court, whi
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concerns in an agreement by Pakista
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ty of the government. This was desi
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The challenge to Poe’s citizenshi
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Poland DEVELOPMENTS IN POLISH CONST
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Poland imposed an obligation on the
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ances. Constitutional capture makes
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in a separate chapter, including th
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was a statistically high frequency
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Singapore DEVELOPMENTS IN SINGAPORE
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security is traditionally an area i
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Separation of Powers The principle
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Slovakia DEVELOPMENTS IN SLOVAK CON
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ty or pardon will be ex officio aut
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stitutional complaints and of 80,6%
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as the source and the common expres
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is undisputable that in today’s s
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South Korea DEVELOPMENTS IN SOUTH K
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Article 68 (1) of Constitutional Co
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tions within the Ministry of Nation
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at the constitutionality of its own
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pliance with the Constitution, warn
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Sweden DEVELOPMENTS IN SWEDISH CONS
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crime is not in congruence with Art
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In both cases, the HFD found that A
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suspended with the add-on counter-i
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Legislature than its predecessor. A
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Thailand DEVELOPMENTS IN THAI CONST
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cy decree. 19 If the law disproport
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junta’s control of upcoming gover
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most European Constitutional Courts
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explicit ban of Article 148 and dec
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United Kingdom DEVELOPMENTS IN UK C
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minster MPs from Northern Ireland,
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sents), the Supreme Court upheld bo
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Zambia DEVELOPMENTS IN ZAMBIAN CONS
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The most salient feature of such a
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The Rules provide for a full trial
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2016 Global Review of Constitutional Law

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