What type of distribution of power does the indian Constitution provide for

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January 2017

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  Dominik Horodyski
• Maria Kierska

One of the most significant changes in modern arbitration rules is the adoption of emergency arbitrator proceedings. These proceedings were introduced in order to provide a party in need of urgent interim measures before the constitution of an arbitral tribunal with an additional option besides going to state courts. In emergency arbitrator procedures such a party may seize an emergency arbitrator ... [Show full abstract] to grant the requested urgent relief. This article provides the Polish perspective on the effectiveness of emergency arbitrator proceedings, given that the Polish law is silent on the institution of emergency arbitrator and the possible recognition and enforce-ment of the decisions of an emergency arbitrator. The article analyses the Polish regulations on interim measures, together with their enforcement, by comparing the relationship, similarities and divergences between an arbitral tribunal, a state court, and an emergency arbitrator. This brings us to the conclusion that the existing legal framework as to the enforcement of interim measures issued by an arbitral tribunal provides a solid foundation for drawing an analogy to the recognition and enforcement of such orders granted by an emergency arbitrator. Thus, the provisions on enforcement of arbitral tribunal’s orders per analogiam allow for the recognition and enforcement of emergency arbitrators’ decisions on interim measures in Poland.

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January 2016 · Acta Iuris Stetinensis

This article highlights selected characteristics of Swiss international arbitration law focussing on interim measures in sports-related disputes. The key academic concern of the article is to indentify whether under Swiss law the parties may waive the state courts’ jurisdiction to grant interim relief in international arbitral proceedings and declare the arbitral tribunal as exclusively ... [Show full abstract] competent. The view held in this article favours the admissibility of the waiver based on mainly two arguments: the parties’ autonomy and the lack of statutory limitations to the waiver. Further, this article deems that in ad hoc arbitral proceedings the waiver is not enforceable (but not null and void) as long as the tribunal has not been yet established. In such a case, the parties may exceptionally request interim relief with state courts. Seeking for a arbitral alternative to the said solution the article scrutinises whether in sports-related disputes the Court of Arbitration for Sport in Lausanne could be competent until the constitution of the ad hoc tribunal. Finally, the article examines the formal requirements for the waiver.

December 2013 · Commonwealth Law Bulletin

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  Anthony Francis

The article highlights the challenge before the courts to the decision of the parliamentary select committee to remove the former Chief Justice of Sri Lanka in January 2013. Parliament and the President proceeded with the impeachment and removal of the Chief Justice, despite court decisions, on the basis that this was a power specifically granted to the parliament under the constitution. The ... [Show full abstract] article examines how the legitimacy of impeachment proceedings of superior court judges can be ensured within the concept of the separation of powers without adversely impacting on the independence of the judiciary and the rule of law.

December 2013 · Kernkraftwerke in Deutschland: Betriebsergebnisse ..

The federal legislator has delivered his energy policy commitment as part of the energy turnaround with the decision on the forced backing out from nuclear energy to be completed until the end of 2022 at the latest. This was obviously not enough for the parliamentary groups of the SPD and Die Grunen [Green party] of the Bremen City Parliament. With an Act dated 25 January 2012, the Bremen ... [Show full abstract] Parliament decided to amend the Harbour Operation Act insofar as " ... the turnover of nuclear fuels in the sense of 2 Para. 1 of the Nuclear Act is excluded ... ". This means that the turnover of nuclear fuels in the Bremer harbours is principally forbidden, unless the senate grants an explicit exception. However: Can a federal legislator enforce its energy policies like that? In order to receive an answer to this question, the representatives of the CDU parliamentary group of the Bremen Parliament lodged a complaint of unconstitutionality at the Bremen State Court of Justice. The decision was delivered on 12 April 2013 (AZ: St 1/12). And what answer did the CDU parliamentary group receive to their question? None! The Bremen State Court of Justice did not make a decision on this politically controversial issue. As its position, the State Court stated that the rules of the Basic Law on the limitations for the legislative jurisdiction between the Federation and the federal states do not constitute a component of the Bremen federal state constitution. And the legal criterion of the State Court of Justice is solely the Bremen constitution, not however, the Basic Law. In short: The State Court of Justice declares itself de facto not competent.

Some years ago, Australia was described as a "frozen continent" when it came to constitutional amendment. That description, apt enough when it was coined, has been given even greater force by the recent rejection of two eminently reasonable proposals for constitutional reform, which were put to a referendum during the 1984 Federal e l e ~ t i o n . ~ If anything, the ice-age described by ... [Show full abstract] Professor Sawer has deepened, and the constitutional neanderthals who rejoice in its frigid wastes are filled with the deepest satisfaction. In these circumstances, it is hardly surprising that occasional attempts have been made to find a means of by-passing the rigid referendum requirements imposed by s. 128 of the Constitution. Probably the most notable of these attempts was the suggestion by Professor Colin Howard that the Constitution might be amendable to amendment pursuant to its own rather shadowy s. 51(38).3 The debate that has followed this suggestion has been long, furious and largely inconclusive. It would appear that because the power conferred by s. 51(38) is granted "subject to this Constitution", it could not be used (in light of the presence of s. 128) for the amendment of the Constitution proper. The position with regard to the covering clauses of the Constitution Act, however, may well be very different. In any event, dicta emanating from a number of judges in a recent decision of the High Court seem to indicate that there may be no need to look to s. 51(38) as a means of evading the requirements of s. 128. Indeed, the logical implication to be drawn from these dicta is that for A.L.J. 358. The covering clauses are not subject to the power of amendment contained in s. 128; see e.g. J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth (1901) 989. The Constitution therefore provides no pre-eminent procedure for their amendment.

March 2009

This chapter provides an account of variation in constitutional values and choices within a federation, grounding it in a conception of federalism as a pragmatic alternative to competing conceptions of the nature of constitutional choice. In what the chapter calls the moral-realist tradition, constitutional similarity ought to be the norm because the purpose of a constitution is to operationalize ... [Show full abstract] principles of justice that are at bottom universal. In contrast, in the democratic-positivist tradition, constitutional divergence is unremarkable because constitutions embody little more than the contingent choices of one political association or another. Federalism charts a middle course. By granting some autonomy to subnational units, federalism permits contingent choice and preference satisfaction, yet by subordinating subnational choices to national ones, it sets collectively determined limits on the permissible range of those choices-a kind of "localized universalism", one might say, that results in a so-called "bounded variation". It is argued that the benefits of such an arrangement include experimentation without instability, diversity without alienation, and the institutionalization of feasible change-although this need not always imply "progress" of a moral or any other kind.

July 2008

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  Timothy Endicott

A review article on Mark Elliott, The Constitutional Foundations of Judicial Review (Hart Publishing 2001). I argue against Elliott's view that, as a matter of logic, judges cannot impose duties on the exercise of statutory powers without acting inconsistently with the legislation, unless Parliament intended the imposition. I also argue against the 'ultra vires theory' (the theory that the ... [Show full abstract] constitutional justification for judicial review of the exercise of statutory powers is that the courts are giving effect to limitations that were imposed by Parliament when it granted the power). It is the common law of the constitution, and not Parliament, that gives the courts the responsibility of imposing the requirements of the rule of law on the exercise of statutory powers. The ultra vires theory, even in Elliott's sophisticated modification, shows the influence of a popular misconception of the role of Parliament in the United Kingdom constitution.

47 p. ; This student paper was awarded the 2004-2005 Law Alumni/ae Associate Prize. Professor Gregory Allen in Ninth Amendment and State Constitutional Rights suggested a hypothetical conflict that could arise between state and federal courts when a state constitution provides for greater protection against governmental abuse of power than the federal constitution. One possible safeguard of ... [Show full abstract] autonomy for those states choosing to grant their citizens greater state law protections than the federal government is the Ninth Amendment. The Ninth Amendment protects “unenumerated rights” that are retained by the people of the states. In theory, applying the Ninth Amendment would essentially federalize state law protections contained in state constitutions and guard that state from federal encroachment. The purpose of this paper is not to introduce the idea of what effect, if any, the Ninth Amendment should be given, a topic that has been extensively discussed. Rather, this paper will examine Professor Calvin R. Massey’s proposal for recognizing Ninth Amendment Rights, as well as explore some of the implications of adopting his three-part test. It is my hope that examining these effects will aid a federal court system contemplating whether to elevate the Ninth Amendment as an enforceable federal doctrine amid genuine doctrinal concerns against such an application. University of New Mexico School of Law

October 2011 · Wissenschaftsrecht

The paper picks up the current renaissance of a debate on the ethical limits of science. Already decades ago, several boards of German state universities have adopted a socalled “Zivilklausel” (civil clause), which prohibits research that is directly oriented towards, or could be exploited for, military use. Yet, the continuous and rising importance of third-party funds for universities creates ... [Show full abstract] more potential conflicts concerning the application of such a rule. Moreover, further German universities recently adopted civil clauses, and others are insistently requested to do so by some of their students, researchers and labour unions. Given the importance of the issues at stake, it might not be surprising that the heated debate largely lacks a – apparently dry – legal perspective. However, the issue of the legality of such rules, whether enacted by the state or by the university, is of high relevance for the practical outcome of the discussion, because these rules clearly affect the freedom of science guaranteed under Article 5 para. 3 of the German Grundgesetz (Basic Law). And – as this paper shows – neither the autonomy of universities nor the constitutional goal of peace can justify this restriction. Thus, the only legal way to establish such a state or university rule would be to amend the German Basic Law. In this case, however, it would be the most recommendable (and beyond that the politically most feasible) option to include a further sentence in Article 5 para. 3 Basic Law, which in principle allows a restriction of the freedom of science by a statute, which aims at preventing a military use of the results of university research. Still, a mere statute may not be enough to fulfil the constitutional requirements. In order to protect the constitutionally granted and intended autonomy of science and research processes, an adequate system of case-by-case-decisions would have to be established within existing or newly installed internal university procedures and organisational structures.

Both the United States and Australia have federal legislation, the Defense of Marriage Act 1 and the Marriage Amendment Act 2004, 2 that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. ... [Show full abstract] Consequently, Australia's express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia's states and territories from passing local same-sex marriage acts. This is fundamentally different than in the United States, where powers regarding marriage are reserved to the states. Therefore, even if the U.S. Supreme Court upholds the Defense of Marriage Act, laws that authorize same-sex marriage remain valid in states such as Massachusetts. 3 Passing a law legalizing same-sex marriage in an Australian state, however, may force the issue before the High Court. A ruling upholding the constitutionality of the law may give Parliament the incentive to use its expressly granted constitutional authority to tighten restrictions on marriage and marriage-like entities even further. Therefore, same-sex proponents in Australia should approach the issue more gingerly than same-sex proponents in the United States. Instead of attempting to pass state same-sex marriage provisions and forcing a decision before the Australian High Court, supporters of commonwealth or state same-sex marriage laws should indirectly pressure Parliament to overturn the Marriage Amendment Act. In addition, they should continue to push for domestic-partnership protections at the state and commonwealth level.

January 2010

Since decades, Austrian historian Hans Hautmann energetically argues in favour of viewing the late Habsburg Monarchy during her constitutional period from 1867 until 1918 as a barely camouflaged dictatorship. On the surface, Hautmann states, the constitution limited the power of the Emperor and its governments, but actually a variety of exemptions to the constitution, laid down in emergency laws, ... [Show full abstract] permitted a nearly unrestricted dictatorial reign. Contrary to Hautmann, I propose that the emergency laws by various means limited the ruling elites' power. Furthermore, the reasons why the parliament granted emergency powers to the government are examined. Third, I argue that the government used its authorization to temporarily suspend the courts' juries for understandable reasons and not for exercising unlimited power. Taken together, my results present a more accurate picture of the power balance of late Imperial Austrian domestic politics, thereby refuting Hautmann's proposition of an absolutist dictatorship.

January 2015

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  Andrew Blick

Conventions are a vital part of any constitution. Often they go unnoticed, but this lack of visibility serves, paradoxically, to underline their importance. They are most noticeable when they fail, or threaten to malfunction. We realise how much we need the service they perform when faced with losing it. As well as being essential to the operation of the system as it is, conventions can play a ... [Show full abstract] prominent part in efforts to change it. And just as the potentially amorphous nature of conventions can cloud assessments of them, so too can it make a consideration of their association with constitutional reform a challenging task. This chapter considers attempts to improve the system that have a connection with conventions. It does so taking into account the country-specific chapters that have preceded it in this book: by Andrew C. Banfield on Canada, by Nicholas Barry and Narelle Miragliotta on Australia, by Grant Duncan on New Zealand and by Robert Hazell on the United Kingdom. It also draws on the academic research of the author (especially Blick and Hennessy 2011; Blick 2014a, 2014b), and his previous experiences as researcher for a member of parliament in the UK House of Commons, adviser to a Commons select committee, and intern at Number 10 Downing Street. The present chapter encompasses changes directed specifically at conventions; and circumstances in which conventions play a secondary role in other alterations. A key purpose is to discern the common features identifiable across the different constitutions, despite their differences. It considers why such change comes about: what are the motives and rationales, and what circumstances are conducive to it? There is then an assessment of the different types of reform that are involved.