Speaking with One Voice?: Ethno-national Division on the Constitutional Court of Bosnia-Herzegovina

The challenge of designing institutions to manage ethno-national conflict is one of the enduring concerns of political science. One important but relatively understudied aspect of this challenge is the design of constitutional courts. Courts are likely to play a key role in the maintenence of a constitutional settlement. But this role can be especially onerous in a deeply divided and post-conflict setting where the rule of law is weak and judges have ethno-national affiliations that may undermine the appearance of judicial neutrality. In such contexts, a court’s authority (including compliance with its decisions) cannot be taken for granted.

With reference the Constitutional Court of Bosnia-Herzegovina, and using an original dataset of the Court's non-unanimous plenary decisions, we test several hypotheses about the degree to which ethno-national affiliation influences judicial behavior. We find that (1) judges on the Constitutional Court do in fact divide predictably along ethno-national lines, (2) that these patterns are robust to changes in the tenure system, and (3) are independent of party political background.

Women's Nightwork :deregulation as a straight road to equality?

The book considers the question whether the traditional prohibition of nightwork for female manual workers could be defended against EU (then: EEC) discrimination law requirements and against the German constitution itself. While I was working on the PhD, German labour law still prohibited manual workers (but not white collar employees, or nurses, or policewomen) from working nights. Just before the thesis was published, the German constitutional court held that the prohibition indeed violates the Constitution, but that it must not be repealed without providing for specific protection against health risks ensuing from night work. The Court thus mainly confirmed the thesis' results. The thesis first considers the history of the legislation (which was based on an ILO convention), and discusses the social and health risks related to night work. It then comes to the conclusion that gender roles imply that women are at a greater risk when working nights, but that there is no biological justification (except during pregnancy of course). The thesis further develops a recommendation, based on the constitutional welfare states principle and the constitutional protection of health, to not just abolish the prohibition, but to provide uplevel equalisation of working conditions for women and men. This was the first time I also tried to work comparatively (not perfect at all), but I have certainly improved since then. An English summary of the thesis was published in the 3rd issue of the Cardozo Women's Law Journal 1996, which was also my first ever publicatin in English

Constitutional Principles and Horizontal Effects: Kücükdeveci revisited

While German labour lawyers were still awaiting the German Constitutional Court’s final verdict on the principles established by the Mangold case, the Court of Justice of the European Union re-visited the question what exactly are the effects of Directive 2000/78 and the constitutional principle of non-discrimination on grounds of age. This article analyses the constitutional relevance of this case in two respects. First, it argues that the Court has accepted neither direct horizontal effects of directives nor direct effects of constitutional principles, but rather - much more cautiously - reiterated the rule that directives on constitutional principles such as non-discrimination can exclude the application of national legislation in horizontal cases. The article also demonstrates that this cautious approach has succeeded in convincing the German Constitutional Court that the Mangold judgment was not ultra vires. Consequently, the claim challenging that judgment was dismissed and a constitutional crisis avoided.

The International Protection of Refugees and Asylum Seekers: the Role of Article 3 of the European Convention on Human Rights

This book presents a comprehensive assessment of regional responses to the crisis in the asylum/refugee system and critically examines how different regions tackle the problem. The chapters consider the fundamental challenges which undermine an effective asylum process as well as regional difficulties with the various circumstances surrounding asylum seekers. With contributions on Africa, Europe, Latin America, South Asia and the Middle East, and the Pacific, the collection strives to appreciate what informs each region’s approach to the asylum process and asks if there are issues common to every region and if regions can learn from one another. The book seeks an understanding of the existing legal regime for the protection of asylum seekers and how regional institutions such as human rights commissions and regional courts enforce and adjudicate the law.

Managing for Legitimacy: Agency Governance in its “Deep” Constitutional Context

Recent literature on bureaucratic structure has gone further than studying discretions given to bureaucrats in policy making, and much attention is now paid to understanding how bureaucratic agencies are managed. This article proposes that the way in which executive governments manage their agencies varies according to their constitutional setting and that this relationship is driven by considerations of the executive’s governing legitimacy. Inspired by Tilly (1984), we compare patterns of agency governance in Hong Kong and Ireland, in particular configurations of assigned decision-making autonomies and control mechanisms. This comparison shows that in governing their agencies the elected government of Ireland’s parliamentary democracy pays more attention to input (i.e. democratic) legitimacy while the executive government of Hong Kong’s administrative state favors output (i.e. performance) legitimacy. These different forms of autonomy and control mechanism reflect different constitutional models of how political executives acquire and sustain their governing legitimacy.

Northern Ireland Representation at Westminster: Constitutional Conundrums and Political Manoeuvres

This article focuses on the issue of Northern Ireland's representation at Westminster. It investigates the political context of the decision to increase Northern Ireland's representation in the house of commons at Westminster from 12 members to 17 in 1978-9. Exploring this episode in more detail, it is argued, provides a more informed overall understanding of the history of devolution in the UK and of the way issues concerning Northern Ireland often overlapped with questions of constitutional change in Scotland and Wales. The article also throws light on the matter of Northern Ireland MPs and their voting rights at Westminster during Northern Ireland's experience of devolution prior to 1972.

Constitutional Questions

Constitutional Questions
Professor John Morison MRIA School of Law, Queen’s University Belfast
How should we live together? Is there any ethical question more fundamental than this?
Is a constitution only about who does what in government or is it about what is to be done? Does a constitution provide the ground rules for deciding this or is it part of the answer itself? Is it the repository of fundamental values about how to live? What is the good life anyway? Is it about the preservation of life and liberty, and the pursuit of happiness? Or something more? What about preserving (or radically reordering) the distribution of property? Or ensuring that everyone has the same chances? Is it the job of the constitution to simply promise dignity, equality and freedom, or to deliver these values?
If the constitution is the place where the state undertakes “to promote the welfare of the whole people”, what does this actually mean in practical terms? And who pays for it? Should a constitution give us an entitlement to at least a basic minimum by way of a lifestyle? Or is it the job only of the political process to decide issues about the allocation of resources? What do we do if we feel that we cannot trust our politicians? Are there basic rules that should govern the operation of politics and are there fundamental values that should not be overridden? Are these “sacred and undeniable”? Or to be interpreted in line with modern conditions and within a “margin of appreciation”? Who decides on this in individual cases?
Who is entitled to any of this, and on what basis? Is everyone equal? Is the constitution about making it clear that no-one is better than you, and that in turn, you are better than no-one? Is a constitution about ensuring that you will always be an end in yourself and never simply a means to anyone else’s end? Or does it simply reinforce the existing distribution of power and wealth?
Are citizens to be given more than those who are not citizens? Is more to be expected from them, and what might that be? Can the constitution tell us how we should treat those from outside who now live with us?
What is the relationship between a constitution and a nation? Who is in the nation anyway? Should we talk about “we the people” or “we the peoples”? Should a constitution confirm a nationality or facilitate diversity? Is the constitution the place to declare aspirations for a national territory? Or to confirm support for the idea of consent? What about all our neighbours – on the island of Ireland and in Great Britain? Or in Europe? And beyond?
What is the relationship between a constitution and democracy? Is a constitution simply the rules by which the powerful govern the powerless? In what sense does a constitution belong to everyone, across past, present and future generations? Is it the place where we state common values? Are there any? Do they change across time? Should the people be asked about changes they may want? How often should this be done? Should the constitution address the past and its problems? How might this be done? What do we owe future generations?
Finally, if we can agree that the constitution is about respecting human rights, striving for social justice and building a fair and democratic Ireland – North and South – how do we make it happen in practice?