Discretion comes with the possibility to choose between different legitimate solutions, involving a significant amount of power for administrative authorities. The paper discusses discretionary powers, identifying situations in which it is acceptable to grant such powers and the existing legislative drafting tools to impede discretion to turn into arbitrariness. The paper addresses three issues. First,...
Tag: <span>TUESDAY JUNE 26 2018 4:30 PM – 6:00 PM</span>
Judicial Protection of Social Rights in Hong Kong
The recognition of socio-economic rights in constitutions, legislation and policies, and the recent growth in jurisprudence in SER in different countries, is partly due to the rising interests in adopting a right-based approach to socio-economic issues and the increased demands in equality in government allocative decision making. This trend can also be seen in Hong...
Judicial Transplantation as a Backdoor to Environmental Normative Integration in ASEAN
This paper argues that Southeast Asian judiciaries hold a backdoor key that would allow the incorporation of environmental norms in a region sensitive to international law intruding on domestic sovereignty. Although the level of receptiveness may vary, decisions and rules crafted by a select ASEAN judiciaries indicate a growing openness to applying environmental law principles...
Judicial Challenges against the Original Constitution
Scholars are fascinated by courts that challenge constitutional amendments. However, scholars have given little attention to judges questioning the product of the original constituent power. Some argue that constitutions can be unconstitutional, but more work needs to be done to understand the role of judges. I develop a theoretical framework and explore examples from Latin...
Police Facial Recognition Surveillance and the Right to Privacy
Facial recognition technology (FRT) is fast becoming the tool of choice for law enforcement agencies looking to police public space. Over the last year, in England and Wales, FRT has been used at a number of crowded events to identify suspects and prevent crime. This technology is more intrusive than ordinary CCTV surveillance as it...
Originalism and Constitutional Amendment
This paper identifies a problem that constitutional amendment uniquely poses for originalist theories of constitutional interpretation, namely: how to reconcile changes to a constitution’s text that enact a new set of understandings (‘amenders’ understanding’) against the understandings of the constitution’s framers (‘original understanding’). This problem presents a significant challenge for originalism that has largely been...
Mixed Methods in Constitutional Law: A Question-Driven Approach
Recent decades have witnessed an explosion of interest in multimethod research. It is partly a by-product of the rise of inter-disciplinarity but it is also a result of intra-disciplinarydevelopments, such as the demise of methodological ‘paradigm wars‘ and the rise of computational approaches. Sited at the edge of law and politics, with material and symbolic...
Multi-tiered (multinational) systems in the African continent: the rationale behind constitutional asymmetries
Contemporary federal theory indicates that recent federal systems are fragmenting and multinational states that experience asymmetrical responses to internal differences. The more comprehensive approach is needed to research asymmetrical arrangements as a mechanism for diversity accommodation. The African continent proves to be especially interesting for research. In the last decades a number of African countries...
Protecting social rights in an interconstitutional context: a southern European view
The economic crisis of the last decade has had well-known detrimental effects on fundamental rights in the EU, in particular on social rights and especially in the south of Europe. The issue of social rights protection during the crisis was a clear case of multi-level constitutionalism (or inter constitutionality, the preferred term in Portuguese). The...
Preventive Entry Policies as a violation of the Right to Leave
Current practices of “interception-at-sea“ preempt many travellers, from irregular migrants to would-be refugees, from claiming a legal right to enter the EU. This policy often hinges upon the consent of the sending country to agree to have its waters policed by foreign maritime authorities and to accept the return of migrants provided that countries of...