Band 9, Heft 1

Over the last years resilience has become a key concept in understanding how rule-making choices are made in the context of risk prevention and disaster. This paper probes the relationship between constitutions and resilience in light of the way constitu­tions responded to the shock of the global financial crisis. What makes constitutions able to anticipate and resist external shocks, or bounce back after a disaster that affects core constitutional functions such as the balance of powers and the protection of fundamental rights? The ability of a constitution not only to withstand a severe shock, but also to enable the legal order whose ground rules it sets out to seek recovery within the constrains of these ground rules, lies at the heart of constitutional resilience. Analysing constitutional functions in terms of resilience could offer a new prism through which to look at national constitutions in an increasingly complex globalized environment. The recent crisis, through the interconnectedness of the multiple pressures it put on the legal orders it struck and the multiplicity of legal responses it demanded, allows exploring how resilience thinking can affect constitutional theory.

This paper analyzes the Austrian Constitutional Court’s use of foreign precedents in the Court’s own case law. As the survey shows, the Austrian Constitutional Court is still reluctant to use foreign precedents, even though there has been a slight increase of cases dealing with foreign case law over the last decade. Among the various reasons for this attitude, the Court’s methodology deriving from legal positivism as well as the doctrine of self-containedness of Austrian constitutional law have been most important. Quite conversely, the same Court strongly engages in the ‘dialogue’ with European courts and has for a long time used to cite case law of both the ECtHR and the ECJ. Still, and with good reasons, the Court is far from becoming a radically cosmopolitan court.

This paper analyzes the Supreme Court of Canada’s decision in R v NS, 2012 SCC 72 where the Court considered if a witness who wears a niqab for religious reasons can be required to remove it while testifying. The Court identified the two Charter rights engaged: the witness’ freedom of religion and the accused’s fair trial rights, including the right to make full answer and defense. This paper focuses on those aspects of the Supreme Court’s decision that relate to religious freedom, multiculturalism and reasonable accommodation. Analyzing the Court’s reasoning through the lens of critical multiculturalism, I consider the potential of the reasonable accommodation framework to forward minority rights. I suggest that had the Supreme Court applied an intersectional framework to adjudicating NS’s claim, it could have crafted a more contextual response based on her location along multiple axes of discrimination: gender, religion and racialised minority. This paper aims to contribute to a better understanding of mediating individual and group tensions, to move towards a more inclusive notion of citizenship than can foster a commitment to a shared multicultural future.

Between the years of 2010 and 2014, the most significant change in the public law system took place in Hungary since the democratic transition of 1989. According to some, this has been a reform, whereas others regard it as destruction. During the trans­formation, of course, relations between all branches of power and their relationship with other factors of power had been a subject of debate. Yet - apart from the general question of how much the state policy established by 2014 complies with the democratic principles of the rule of law based on the division of power - from the viewpoint of power theory there had been three major issues that instigated fierce debates. They concerned the status of the president of the republic, the legitimacy of the constitution (Fundamental Law) and the relationship between the constitution-making power and the constitutional court. The present study aims to address the above questions.

The article describes the reasons for the constitutional amendment to the Czech Constitution turning the traditional indirect elections of the President of the Republic into direct popular vote. It analyses the shortcomings of the constitutional amendment as well as of the Act on Presidential Elections. In the two parts that follow, it addresses the two main problems of the presidential elections: the registration of the candidates and the elec­tion campaign, and analyses the milestone decisions of the Supreme Administrative Court regarding these two questions. Finally, the author reflects the first year of presidency of Miloš Zeman and his questionable attempts to broaden the scope of presidential competences by innovative interpretation of the Czech Constitution.