Constitucional Law

Derecho Constitucional / Constitucional Law

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Canada Supreme Court allows non-resident citizens to vote    

Source: Jurist

January 11, 2019

The Supreme Court of Canada on Friday struck down a restrictive law that prevented Canadian citizens living outside the country from casting ballots in national elections.

The question before the court revolved around a section of the Canada Elections Act that stated that citizens of Canada have the right to vote as long as they have “been absent from Canada for less than five consecutive years.” This section of the law had the effect of disenfranchising more than a million and a half Canadian citizens who lived outside the country for five or more years, including Gillian Frank and Jamie Duong, two Canadian citizens who teach at universities in the US. The two sued the Canadian government after being barred from voting in the election of 2011, alleging that the five-year limitation was “arbitrary” and blocking their right to vote was unconstitutional. The Canadian government argued that the limitation of voting rights was justified under Section 1 of the Canadian Charter, which allows for constitutional rights to be curtailed in a “reasonable” and “minimally impairing” manner if there is a strong policy reason for doing so.

In its 5-2 decision, the Supreme Court of Canada agreed with Frank and Duong. In the judgment, Chief Justice Richard Wagner stated that the government’s invocation of Section 1 of the Charter “must be carefully scrutinized and cannot be tolerated without a compelling justification.” Without a clear and reasonable policy reason for limiting the rights of non-resident citizens, the court felt that the government’s use of Section 1 to justify the five-year residency limitation on the right to vote of the Charter was improper. “Voting is the cornerstone of our democracy,” Wagner stated, going on to write that “denial of the fundamental right to vote, in and of itself, inflicts harm on affected citizens.” The two dissenting judges stated, however, that the five-year limitation was justifiable, writing that “a five-year time period falls within the range of reasonable options that were open to Parliament, and it is not this Court’s prerogative, let alone within this Court’s expertise, to second-guess the precise location at which Parliament chose to draw the line” in their dissent.

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Derecho Constitucional

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Guatemala constitutional court allows entry to UN anti-corruption official after being detained at capital airport

Source: Jurist  

January 07, 2019

Guatemala’s Constitutional Court on Monday ordered [Spanish] the release of Colombian Yilen Osorio, a member of the United Nation’s International Commission against Impunity in Guatemala (CICIG) which is charged with investigating allegations of corruption in the country. Osorio had been held in detention at the La Aurora International Airport in Guatemala City since his arrival on Saturday.

For the past decade, the CICIG, in partnership with the Attorney General’s office, have helped in the arrest and prosecution of powerful criminals and corrupt officials who were once deemed untouchable. Last year, Guatemalan President Jimmy Morales attempted to hamper efforts of the CICIG by refusing to renew the CICIG’s mandate and denying its members entry into the country but was unanimously denied by the court’s five magistrates. The CICIG is currently investigating allegations of bribery and corruption within the Guatemala government and Morales’ political party. 

 Morales came into power in 2015 when members of the previous administration stepped down amid fraud and corruption charges. His four year term is set to expire at the end of this year and he is ineligible from seeking a second term under Guatemalan law. However, Morales has hinted at prolonging his rule, claiming little can be done in a single four-year term.

Derecho Constitucional / Constitucional Law

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Supreme Court hears arguments related to Native American hunting rights and copyrights

Source: Jurist  

January 09, 2019

-United States-

The US Supreme Court heard oral arguments in two cases on Tuesday. The first case, Herrara v. Wyoming, concerns whether Crow Tribe members have the right to hunt on Bighorn National Forest lands. The second case, Fourth Estate Public Benefit Corporation v. Wall-Street.com, concerns when a copyright is registered.

In Herrara v. Wyoming, Herrara’s attorney argued that an 1868 treaty that gave members of the Crow Tribe authorization to hunt in the lands that now make up Bighorn National Forest is still in effect. The case centers on whether Wyoming entering statehood ended the treaty, or if the national forest is considered occupied lands. The treaty stated that the agreement would end if the lands became occupied. Frederick Liu, Assistant to the Solicitor General of the Department of Justice, gave oral arguments in support of Herrara.

In Fourth Estate Public Benefit Corporation v. Wall-Street.com, the case centers on whether a copyright is considered to be registered when the application is submitted to the Copyright Office, or when the Copyright Office acts on the application. The attorney for Fourth Estate Public Benefit Corporation argued that registration occurs when the proper application material is submitted. The attorney for Wall-Street.com argued that registration occurs when the Copyright Office has made an official action on the application. Jonathan Ellis, Assistant to the Solicitor General of the Department of Justice, gave oral arguments in support of Wall-Street.com.

Derecho Constitucional / Constitucional Law

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Federal judge blocks asylum restrictions

Source: Jurist

December 19, 2018

-United States-

 A federal judge on Wednesday blocked Trump administration asylum restriction policies that prevented immigrants who were victims of gang or domestic violence in their home countries from seeking asylum.

The ruling came as a result of a lawsuit that the American Civil Liberties Union and the Center for Gender & Refugee Studies filed on behalf of 12 asylum seekers. These asylum seekers were denied asylum after taking part in interviews that were “designed to evaluate whether plaintiffs had a credible fear of persecution by their respective home countries.” After these interviews, the plaintiffs were denied asylum after officers applied “the standards set forth in a recent precedential immigration decision issued by then-Attorney General, Jefferson B. Sessions.”

In blocking these standards, the judge found that “the new credible fear policies are arbitrary, capricious, and in violation of the immigration laws.”

Derecho Constitucional / Constitucional Law

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Hungary establishes new administrative court system

Source: Jurist

December 13, 2018

he Parliament of Hungary passed a package of bills on Wednesday that establishes a new system of courts that will be supreme in administrative matters. Drafts of the two bills, T/3353 and T/3354, were submitted by the government on November 6 and passed with 131 in favor and two against and 130 in favor and 3 against, respectively, in yesterday’s vote.

The jurisdiction of the new administrative courts ranges from cases of public concern, including elections, corruption, asylum, and peaceful assembly, to economic matters from disputes over taxation to the issuing of construction and building permits to media and market competition. Prime Minister Viktor Orban’s Justice Minister will have the power to appoint judges in both the new lower administrative courts and the Administrative High Court. He will also control judicial promotions and the courts’ operating budget.

Although the government cites efficiency as its motivation, the Hungarian Helsinki Committee has said the new system of courts will seriously jeopardize judicial independence in Hungary and undermine separation of powers.

The laws will be reviewed by the Venice Commission, an expert body that issues advisory opinions. The government has said that it will assess the Venice Commission’s opinion and carry out corrections to the law if required.

The new administrative courts will begin operating on January 1, 2020.

Derecho Constitucional / Constitucional Law

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Irelandlower house approves bill allowing elective abortion

Source: Jurist

December 06, 2018

Ireland’s lower house of parliament, the Dáil Éireann, on Wednesday approved a bill legalizing abortion services.

The bill, titled the Regulation of Termination of Pregnancy, allows the elective termination of pregnancies before 12 weeks. Patients who elect for abortion services within their first 12 weeks of pregnancy, must receive two examinations from separate physicians certifying the procedure.

The bill also allows for abortions in medical emergencies or when medically necessary. This bill repeals the Protection of Life During Pregnancy Act 2013 that only permitted termination if there was serious risk to the life or health of the mother.

The passage of the bill is another step in Ireland’s health reform on abortion. Despite passing a constitutional amendment repealing the country’s ban on abortion in September, previous legislation that governed abortion remained applicable. This bill repeals such preceding legislation and will serve as the primary act regulating abortion.

The Dáil passed the bill 90-15, with minor changes. One change includes review of the legislation after three years rather than the originally proposed five years.

The bill now moves to the Seanad Éireann, Ireland’s upper legislative house, where it is scheduled to be debated Thursday.

Derecho Constitucional / Constitucional Law

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Dutch court rejects man’s request to change his age

Source: Jurist

-Netherlands-

December 03, 2018

A Dutch district court on Monday denied Emile Ratelband’s request to change his date of birth to reflect the age that he says he feels, 49, rather than his actual age, 69.

The court stated that its main reason in denying the request was that “unlike the situation with respect to a change in registered name or gender, there are a variety of rights and duties related to age, such as the right to vote and the duty to attend school. If Mr. Ratelband’s request was allowed, those age requirements would become meaningless.”

The court acknowledged that people may feel fit and healthy, but that that is not “a valid argument for amending a person’s date of birth.” It also stated that maintaining accurate information in the public registers was a priority, and that amending Ratelband’s age would cause 20 years of records to vanish from those registers.