Constitutional Law News Archive
Recent Constitutional Law News from Australia and the World (20 October 2005)
Iraq Votes on Constitution
The people of Iraq have voted in a referendum on whether to accept the country’s proposed constitution. The content of the charter has been the subject of negotiations for months, with many Sunnis remaining unsatisfied with the final document. While the constitution was expected to be endorsed by the vote, the Election Commission is now investigating allegations of vote fixing in some provinces.
- Iraq’s Election Commission Check Ballots (Guardian)
- Iraq Poll Panel to Audit Vote (Aljazeera)
Constitutional Change in Hong Kong?
The government of Hong Kong has proposed changes to its electoral system to allow a greater role for district councillors, some of whom are elected by the community, in the election of the executive. However, democratic advocates in parliament have expressed their dissatisfaction with the proposals, suggesting they do not go far enough. With 25 of 60 seats in the parliament, democratic supporters have the power to defeat a constitutional amendment, which requires two-thirds majority support.
- Hong Kong’s Democracy Plan Draws Criticism from Democrats (NY Times)
- Reform Proposals Pragmatic, Feasible: CS (news.gov.hk)
Ecuador’s President Asks Tribunal to Approve Referendum
The President of Ecuador, Alfredo Palacio, has bypassed Congress and directly asked the Electoral Tribunal to approve the holding of a referendum in order to establish a body charged with rewriting the constitution. The referendum would ask voters to approve of the appointment of a 100-member constitutional convention. Congress has appealed to the Tribunal to reject the request, and has called for the President’s resignation.
- Ecuador Faces More Instability Amid Constitution Row (Reuters)
- Ecuador Leader Clashes with MPs (BBC)
Spainish Court Can Hear Crimes Against Humanity
The Constitutional Court of Spain has ruled that its “universal jurisdiction” allows it to hear cases involving war crimes or genocide in other countries, even where Spanish national interests are not involved. The ruling overturns an 8-7 decision of the Spanish Supreme Court in 2003 that the massacre of indigenous Guatemalans could not be heard by Spanish courts.
- Spain May Try Genocide Crimes Committed Abroad (Periodico26)
- Spain May Judge Guatemala Abuses(BBC)
6 October 2005
• Bush Names Supreme Court Nominee
• High Court Rejects IR Advertising Claim
• NZ, Germany Still Working Towards Forming Stable Governments
15 September 2005
• US Court Finds Pledge of Allegiance Unconstitutional
• Massachusetts Marriage Amendment Fails Legislative Vote
• Iraq Constitution Redrafted
8 September 2005
• Roberts Named as Chief Justice Nominee
• Egypt Votes in First Multi-Candidate Presidential Race
• High Court Rejects Legal Advertising Claim
• Roberts Named as Chief Justice Nominee
1 September 2005
• Government and Unions Put Their Case to the Court on IR Ads
• Australian High Court Rules in ‘Pacific Solution’ Cases
• Parliament Rejects Impeachment Bid in Philippines
• Constitutional Amendments Passed in Zimbabwe
6 October 2005
Bush Names Supreme Court Nominee
US President George Bush has named White House Counsel Harriet Miers as his nomination to fill the Supreme Court vacancy left by retiring justice Sandra Day O’Connor. Miers has no judicial experience, but has a long history working with Mr Bush, having previously held the role of Deputy White House Chief of Staff. Meanwhile, John Roberts has been sworn in as the Supreme Court Chief Justice, after his nomination was confirmed by the Senate.
High Court Rejects IR Advertising Claim
A majority of the Australian High Court has dismissed the application of the ACTU and ALP challenging the constitutional validity of the federal governments advertising of its proposed industrial relations changes. No written judgment has yet been released, however in its Orders, the Court determined that it was ‘not appropriate’ to answer the key question of whether the appropriations necessary to fund the advertisements were authorised, and that the plaintiffs had established no basis for relief.
NZ, Germany Still Working Towards Forming Stable Governments
Negotiations are continuing in New Zealand between Labour leader Helen Clark and a host of minor parties in an attempt to establish a stable minority government. Meanwhile, in Germany, Christian Democrats leader Angela Merkel and Social Democrats leader Gerhard Schröder will meet in the hope of reaching a compromise on the formation of a grand coalition and in order to determine who should serve as Chancellor.
15 September 2005
US Court Finds Pledge of Allegiance Unconstitutional
A Federal District Court Judge in California has ruled that the recitation of the American Pledge of Allegiance in public schools is unconstitutional, as an impermissible infringement on the separation of church and state under the First Amendment. Schools in three districts in Sacramento County will be prevented from reciting the pledge by restraining order. The decision conflicts with a 4 th Circuit of Appeals decision last month which found that recitation of the Pledge is an act of patriotism and not an exercise of religion. The decision is likely to be appealed to the 9 th Circuit of Appeals.
Massachusetts Marriage Amendment Fails Legislative Vote
By 157-39, the Massachusetts State Legislature has voted against a proposed constitutional amendment which would outlaw same-sex marriage and allow for civil unions for same-sex couples. The proposed amendment is a response to the 2003 decision in Goodridge v Department of Public Health which held that preventing same-sex couples from marrying was unconstitutional. A further proposal, which would prohibit same-sex marriage without providing for civil unions, has already been endorsed by Governor Mitt Romney, and is also likely to come before the Legislature for approval.
Iraq ’s proposed constitutional charter has been amended and the revised draft delivered to the United Nations to be officially printed and distributed. A referendum is due to be held to vote on the Constitution on October 15. The most recent changes include centralising water management, providing for two (instead of three) deputy prime ministers, and declaring a commitment to the charter of the Arab League. The concerns of Sunni leaders, particularly over the constitution’s federal structure, are likely to remain as a source of division.
8 September 2005
Roberts Named as Chief Justice Nominee
John Roberts has been named as President Bush’s nominee for Chief Justice of the Supreme Court, following the death of Chief Justice William Rehnquist. Roberts had previously been named as Bush’s nominee to fill the vacancy left by Justice Sandra Day O’Connor, whose seat will also have to be filled. As a result, the US Senate has postponed Roberts’ confirmation hearings for a week. Those hearings had been scheduled to begin on September 6.
Egypt Votes in First Multi-Candidate Presidential Race
Egypt has voted in a contested presidential election for the first time. Earlier this year, President Hosni Mubarak supported a constitutional amendment which allowed other candidates to run for the presidency. However, observers suggest that the poll was still far from democratic, and that no other candidate had any realistic chance of success. President Mubarak was expected to retain power comfortably.
High Court Rejects Legal Advertising Claim
In the case of APLA Limited v Legal Services Commissioner (NSW), the High Court has ruled, by a 5-2 majority (McHugh J and Kirby J dissenting) that a NSW law preventing lawyers from advertising services for personal injury claims is constitutionally valid. The plaintiffs argued that Part 14 of the Legal Profession Act was constitutionally invalid on a number of grounds, including that it infringed upon the implied freedom of political of communication, all of which were rejected by the majority.
1 September 2005
Government and Unions Put Their Case to the Court on IR Ads
The Full Bench of the High Court this week heard argument from counsel for the Commonwealth and for the Australian Council of Trade Unions on whether advertising promoting the Government’s proposed industrial relations reforms is authorised by the Constitution. The key issue is whether the expenditure of government revenue for the advertising needs to be explicitly authorised by the Parliament. The Court reserved judgment in the case.
Australian High Court Rules in ‘Pacific Solution’ Cases
On Wednesday 31 August, the High Court delivered its decisions in Ruhani v Director of Police and Ruhani v Director of Police (No 2). In the first decision, the High Court ruled that a law allowing the Court to hear appeals from the Supreme Court of Nauru is constitutionally valid. In the second decision, the Court heard Mr Ruhani’s appeal from a decision of the Nauru Supreme Court. Mr Ruhani is an Afghani national who had been on board the MV Tampa, was refused entry to Australia, and taken to Nauru as part of Australia’s ‘Pacific Solution’. The High Court, by 4-1 (Kirby J dissenting), found that the special-purpose visa granted to Mr Ruhani, which ensures that he is kept in one of Nauru’s detention centres, was validly issued, and that Mr Ruhani had not been illegally detained.
Parliament Rejects Impeachment Bid in Philippines
Three charges of impeachment against the President of the Philippines, Gloria Arroyo, have been rejected by the House Justice Committee. The impeachment charges brought by the Opposition relate to claims that Arroyo was involved in impropriety during last year’s elections. However, if the Opposition can gain the signatures of one-third of the members of the House, the charges can be heard directly by the Senate.
Constitutional Amendments Passed in Zimbabwe
Zimbabwe’s Parliament has accepted proposed constitutional amendments sponsored by the ruling party of President Robert Mugabe by a vote of 103-29. The amendments will remove rights of landowners to appeal the acquisition of property by the government, and allows the government to withhold passports in the national interest.