Band 4, Heft 1

The article discusses the importance of using foreign sources in the constitutional interpretation of counter-terrorism initiatives. By reviewing the Arar case, the author underlines the value of Canadian jurisprudence to evaluating extraordinary rendition. The similarities between the Arar and El Masri cases underscore the weakness of the current standard adopted by American judiciary in evaluating extraordinary rendition. The article further draws on the Israeli experience in dealing with torture. American jurisprudence will be greatly improved if it directly discusses the strengths and weaknesses of the Israeli debate in its own constitutional interpretation. In totality, American jurisprudence has an incredible untapped resource in the experiences of other countries on addressing problems that Americans would likely see as unique.

Legislatures sometimes interfere in judicial proceedings when they expect the outcome to be politically undesirable. The resulting ad hoc laws are applicable in cases known in advance, although they may appear to be neutral, general and prospective. Such laws force the courts to decide the case in favor of the State, making continued litigation pointless for the other party. Legislation of this kind may seriously threaten the rule of law, fundamental rights, including the right to a fair trial and the separation of powers. In this article, recent examples will be presented, explaining and comparing the position of the European Court of Human Rights and the U.S. Supreme Court.

It is well-known that democracy's enemies could rely on the democratic right to free speech to destroy democracy itself. The classic dilemma to be solved, then, is the question whether democracy could defend itself against hostile speech in a way, which would not also endanger the right that forms its own political heart. What makes the resolution of this dilemma such an arduous task is the principle of consent, which has traditionally constituted democracy's source of legitimacy. This principle is precisely what forms the theoretical Achilles' heel in democracy's self-defense as well, should enemies of this political system choose to pursue its destruction by means of the ballot box. Under that scenario, they would rely on democratic liberties in general, and the right to free speech in particular, to conquer power through the process of majority formation, and subsequently proceed to abolish the process that has made possible their conquest of power in the first place. If democratic government, however, seeks to neutralize this threat by restricting or suspending the democratic rights of democracy's enemies, then it would expose itself to the allegation of betraying the very principle, which constitutes the source of its legitimacy. Democracy's enemies could, after all, credibly allege that laws which are specifically enacted to deprive them of the rights to democratic participation cannot somehow be rooted in their own consent, whereas consent is a sine qua non for the democratic legitimacy of a law. The first challenge to be addressed, therefore, is whether democracy may be able to defend itself against hostile speech in a selfconsistent way. Related to this is the challenge of how to prevent democracy's efforts at selfdefense from degenerating into a suppression of political dissent in general. Would it be possible for a democratic government to combat extremist speech without endangering the right to free speech itself? This second challenge is one that we have to face whenever a democratic government feels compelled to take measures to defend itself against its enemies. As Susanne Baer has pointed out, “a state engaged in self-defence tends to go too far.” Drawing on a theory of democracy elaborated by Hans Kelsen under the Weimar Republic, we shall argue in this Article that it is entirely possible for a democratic regime to both suppress the expression of antidemocratic ideas and preserve freedom of speech at the same time.

Deportations or removals of persons, who have spent a certain period in Australia have tremendous impacts and consequences on their lives and most likely on the ones of their families as well. Therefore it is worth assessing how significant family related aspects are taken in the administrative decision-making process concerning deportations or removals. The essay starts with a description of the domestic legal framework, to evaluate conditions under which such measures are legitimate. An overview on family protection in Australia presents the different sources of human rights together with its content and scope. More specifically the notion of family life for the assessment of the legality of deportations or removals is scrutinised by examining the compliance with international treaty obligations as well as the significance of citizenship. Finally, two relevant Directions (D) of the Minister for Immigration and Citizenship are assessed in the context of sufficient safeguards for family life.