Comparative Constitutional Crises

PolandBy Lora Johns

Brett Kavanaugh’s nomination for the U.S. Supreme Court has created a kind of panic in the States. Activists, scholars, and commentators fear the crumbling of long-standing civil rights precedents, the downfall of democratic checks and balances, and the looming threats of a Court that, they suspect, would not hold the Executive Branch accountable to the people. At the same time as the United States is experiencing this ferment, another democracy’s judiciary is undergoing a far more turbulent upheaval.

Poland’s conservatives and liberals have been warring over the judiciary for several years. In the summer of 2015, the liberal Civic Platform-controlled Parliament appointed several judges. But in October 2015, the Law and Justice Party gained control of both houses of Parliament and just two months later used its new position of power to put hand-chosen judges on the Constitutional Court’s bench. It also refused to recognize the judges that the former Parliament had appointed.

Summer last year saw even more extreme legislative turmoil over the bench’s composition. The lower house of Parliament voted to give the political branches the ultimate control over the court’s composition. The job of nominating judges would pass from the National Judiciary Council to the Parliament, giving the legislature unprecedented control over the courts. Critics stressed that this would undermine the judiciary’s independence, and thousands of people took to the streets in protest, crying “konstytucja” (“constitution”). Despite a formal warning from the European Commission, President Duda signed an overhaul of the Polish judicial system into law.

Now, Parliament has mandated that the justices on the high court must retire at age 65. Enforcing this law would immediately dismiss 27 of the 74 judges currently serving from the bench. Only the President would have the power to override the retirement cutoff and reinstate a judge upon request. No criteria control the President’s discretion, and the law does not provide for judicial review of the decision to (not) reinstate a judge. Since the law also expands the size of the court to 120 judges, it would also give Parliament the opportunity to pack the court with its chosen candidates. Unsurprisingly, protests continue to flourish.

In the face of what many perceive as an authoritarian threat to a free judiciary, the European Commission has launched an infringement procedure to try to protect the independence of the Polish judiciary. It argues that the new laws are not in line with European standards on judicial independence and the rule of law as enshrined in Article 2 of the Treaty on European Union. The International Commission of Jurists, a nongovernmental organization, has also spoken out against the new system. Many other international legal bodies, like the Council of Bars and Law Societies of Europe, have made similar statements and taken actions aimed at mitigating the Polish Parliament’s manipulation of the judicial system.

In the U.S., some scholars and pundits have argued that various aspects of the current administration related to the Supreme Court threaten a constitutional crisis, in part because both the House and Senate are controlled by the same party; in part because of the circumstances under which Anthony Kennedy retired from the Supreme Court; and in part because Brett Kavanaugh was nominated to fill his seat. There have even been suggestions of court packing as a preventive measure against Executive tampering with judicial independence. But what makes the constitutional crisis in Poland different is the involvement of international bodies and nongovernmental organizations with the power to influence, if not directly control, the actions of that country’s legislature. The Treaty on European Union offers actors like the European Commission an opportunity to examine and analyze the Polish Parliament’s treatment of the courts in a way that ultimately lays bare the legislature’s political motivations and brings the facts to the public from a third-party perspective. The EU at large is neither for nor against either of Poland’s opposing political parties; it can serve as a (relatively) disinterested mirror to reflect the changing nature of judicial independence (or subservience) and provide much-needed perspective.

As we grapple with our own crises of democracy and courts and judges in the United States, it would serve us well to take a moment away from looking inward and turn towards the East, to observe, to compare, and to learn. A threat to judicial independence in any democracy is an issue that we should pay close attention to, no matter where we live.

FCIL-SIS Jurisdictions Interest Groups To Meet On Sunday

FCIL-SIS invites all AALL conference attendees to join us for our Jurisdictions Interest Groups Joint Meeting this Sunday, from 12:30pm to 2:00pm, in the Hyatt-Water Tower Room.  The program will include substantive presentations from several of our interest groups, as well as 15 minutes at the end of the meeting for each group to discuss their plans for the coming year.

The agenda for the meeting is as follows:

SUNDAY July 17, 2016

12:30 PM – 2:00 PM

FCIL-SIS Jurisdictions IG Joint Meeting (Africa, Asia, Latin America, Europe, Indigenous Peoples, Customary & Religious Law, Roman Law) (Hyatt-Water Tower)

Meeting Topics:

  • Welcome and Intro (Susan Gualtier, Louisiana State University School of Law Library) – 5 minutes
  • European Law: Recent Developments in German Law Related to Asylum and Refugees: A Brief Overview for Law Librarians (Jennifer Alison, Harvard Law School Library) – 20 minutes
  • Latin America: Cuban Legal Research Guide (Julienne Grant, Loyola University Chicago Law Library, et al.) – 10 minutes
  • Africa: Updates of the Digitization Case Law Project from South Western Nigeria (Yemisi Dina, Osgood Hall Law School Library) – 20 minutes
  • Indigenous Peoples: Indigenous Peoples and DNA Testing: Friend or Foe? (Steven Perkins, Greenberg Traurig, LLP) – 20 minutes
  • Individual Interest Groups business meetings – 15 minutes

Everyone is welcome to attend the presentations and to check out our interest groups, so please spread the word to anyone interested in these areas of foreign law.  FCIL-SIS looks forward to seeing you there!

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IALL Recap: The Mediation Committee of the Bundestag and Bundesrat: A Special Institution of German Constitutional Law

By Jennifer Allison

On Monday, September 21, the afternoon session of the 2015 IALL Annual Course focused on the Mediation Committee of the Bundestag and Bundesrat.

First, we heard a lecture on this topic at the Staatsbibliothek zu Berlin by Claus Dieter Koggel. Mr. Koggel is an administrative officer (Ministerialrat in der Sekretariat) for the Bundesrat, one of the two houses of the German Parliament.

JA1Mr. Koggel discussed the history and work of the Mediation Committee (Vermittlungsausschuss), which is a constitutionally-mandated body (established under Article 77 of the Basic Law) that provides a forum for resolving conflicts that arise during the legislative process between the Bundesrat and the other parliamentary house, the Bundestag.

The Mediation Committee is comprised of 16 members of each house. Often these members are experienced parliamentarians with a wide range of knowledge and experience, and they are valued for their ability to think independently while also respecting the positions of their respective political parties.

Under the German Parliament’s legislative process, bills are first considered in the Bundesrat, whose membership consists of members that represent each of the sixteen German states (Länder). After a bill has been passed in the Bundesrat, it is sent to the Bundestag, which then passes its own version and sends it back to the Bundesrat. At that point, if the Bundesrat refuses to pass the Bundestag’s version of the bill, the Mediation Committee is convened to attempt to work out the differences and produce a single, passable version of the bill that can be enacted into law.

Mediation Committee meetings are strictly confidential: the only people allowed to be present during them are the members of the committee, two lawyers, and a stenographer. In addition, if a majority of the membership agrees to it, expert witnesses can be admitted to give testimony.

Once Committee members agree to a compromised version of the bill, it is published immediately online and introduced to both houses for another vote.

The frequency with which the Mediation Committee has been required to convene in it relatively recent history has varied, depending largely on whether the government was headed by the opposition party to that which held the majority in the Bundesrat .

JA2During one session particularly contentious session of Parliament in the past, the Committee was convened for 100 out of the 400 bills considered. That particular Committee enjoyed an 88% success rate, as only 12 bills of the 100 they considered failed to pass after the Committee’s deliberations.

The current parliament only recently convened the Committee for the first time, despite being two years into its session, as they have made a greater attempt to compromise on their own before attempting mediation.

After Mr. Koggel’s lecture, IALL attendees visited the Bundesrat building in person. We were treated to a tour from a very informative and enthusiastic member of the Bundesrat’s administrative staff. She showed us the plenary chamber, where the Bundesrat meetings take place, and discussed the finer points of the plenary procedure.

JA3Following this, we were taken to the Mediation Committee’s meeting room, where were once again met by Mr. Koggel. He took great care to point out certain interesting and useful features of the room, such as the power window shades, which were installed to prevent the prying eyes and long-range camera lenses of the media in adjoining buildings from eavesdropping on the compromises that were taking place during the secret Committee sessions.

Mr. Koggel pointed out during both of his presentations that the Mediation Committee has been the recipient of both praise and criticism in Germany. While it has been lauded as an innovated and positive way to resolve legislative conflicts and arrive at a compromise, it has also been characterized as “a mysterious dark room of legislation.”

JA4Perhaps both of these are true. But it is firmly established as a component of the legislative process, and in addition to its constitutional mandate, the Committee is also influenced by established best practices, parliamentary law, and the judicial decisions of the Federal Constitutional Court (Bundesverfassungsgericht).

In the U.S., so many battles between Republicans and Democrats in Congress end up being played out in the media, and politicians often appear to be more motivated by scoring points with voters in upcoming elections than by achieving legislative success.

It struck me during the program that maybe this Mediation Committee would be a valuable import for the U.S. Congress to consider, so much so that I ended up tweeting about it. However, I have to admit that I’m skeptical that an organization like this could ever be considered, let alone work, in our government.

DipLawMatic Dialogues Is Heading to Berlin!

iall captureAs most of our readers are surely aware, this weekend marks the beginning of the International Association of Law Libraries 34th Annual Course on International Law and Legal Information!  This year’s conference takes place at the Staatsbibliothek zu Berlin (Berlin State Library), and the theme of the conference is “Within and in between: German Legal Tradition in Times of Internationalization and Beyond.”

The conference programming will “reflect Germany’s legal history and will characterize unique perspectives on international and domestic law issues as well as legal information items. Speakers at the sessions will include highly regarded German legal scholars, legal practitioners and law librarians.”  More information is available on the conference website.

If you are attending the conference and would like to contribute to our blog coverage, please contact Susan Gualtier at susan.gualtier@law.lsu.edu.

DipLawMatic Dialogues looks forward to bringing you conference coverage and photos throughout the next week!

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Book Review: Criminality and Criminal Justice in Contemporary Poland

ByCriminality and Criminal JusticeChristopher Galeczka

Konrad Buczkowski, et. al. Criminality and Criminal Justice in Contemporary Poland: Sociopolitical Perspectives (Ashgate Publishing, 2015). 208 p. Hardcover $112.46.

Criminality and Criminal Justice in Contemporary Poland is a collection of articles by professors, as well as one alumna, of the Institute for Law Studies at the Polish Academy of Sciences. The series of ten articles designated as chapters describe the philosophical views on crime and criminality of some of the authors, as well as other Polish authorities on the subject, and describe the historical and contemporary aspects of crime, the criminal justice system, and public perceptions of both in the country.

Poland is a country of significance to international and comparative legal scholars in being one of the largest countries in Central Europe, a region of nations characterized by long legacies of foreign rule, the more recent experience of a half-century of existence under Soviet-imposed Communism, and a still unfolding path of economic and political integration into pan-European institutions. As such, this work is of relevance not only to those interested in comparative criminal law, but also those interested in criminality across time and cultures, as well as the economic, social, political and cultural issues that arise in societies in transition from command to market economies and from authoritarian to liberal-democratic political systems.

Chapter 1, “Criminality Today and Tomorrow,” discusses historical and philosophical definitions of the concept of crime, as well as the ways in which crime is defined in the current Polish criminal code, with reference to defenses and mitigating circumstances (e.g., when certain acts are committed by juveniles or in self-defense), contained in the code.

Chapter 2, “The Status of Criminality in Poland since 1918”, narrates the history of Polish criminal legislation from independence through the communist era, to the present day, as well as describing rises and falls, and changed in criminal activity in the country with reference to available statistics, chiefly, the total number reported crimes and finalized convictions in a given period.

Chapter 3, “Social Change and Criminality: Mutual Relationships, Determinants, and Implications” treats the issue of social change and its effect on the level and nature of criminality. Kossowska describes the findings and conclusions of a number of criminologists concerning changes in criminal activity during several key periods of transition in 20th century Polish history, concluding with a discussion of the precipitous drop in ordinary criminal activity in many nations including in Poland, albeit delayed in comparison to elsewhere, and also with the advent of cybercrime and the unusual, un-marginalized nature of those who engage in it.

Chapter 4 examines the association between crime on one hand and socially excluded and economically marginalized groups on the other. Beginning with a discussion of the criminalization of the itinerant and unemployed in medieval Europe, the author examines how poverty and factors often accompanying poverty, such as feelings of alienation from society, alcoholism, family breakdown, living in marginalized areas often combine with opportunities to commit crime, leaving underprivileged people to be disproportionate perpetrators and victims of crime.  Chapter 5 continues by examining the difficulties faced by and failures of the Polish social welfare and public educational system in being able to effectively reduce social exclusion, and, by extension, criminal activity.

Chapter 6, “Justice and its Many Faces,” describes the views of many contemporary Polish writers on society’s proper response to those guilty of committing crimes.

Chapter 7 “Controlling Criminality” focuses on the Polish criminal justice system’s historical approaches to combating crime, with statistical data on numbers of crimes, convictions, and frequency with which various sanctions were imposed. Chapter 8 “Supervised Liberty,” focuses on one of the most frequently imposed of these sanctions, the suspended sentence, and comparing the philosophical justifications and practical success of this sanction with that of probation in the United States, United Kingdom, and similar systems elsewhere in Europe.

Chapters 9 “The Social Perception of Criminality,” and Chapter 10 “Criminality and the Media” combine to tell the story of public perception of crime and the role of the media in forming that perception, beginning with the late Communist era, typified by press censorship, and a relatively low level of certain criminal activity, and continuing on through the transition to democracy, characterized by a rise in criminal activity as well as the development of sensationalist media and a great rise in popular fear of crime. The story of a tabloid press fanning public fear of crime, as well as the sentiment of a criminal justice system that is ‘soft on crime’ despite its many punitive aspects would likely ring familiar to the ears of many American readers.

Many of the chapters of the book are written in a somewhat dense scholarly style. Citations are in APA format. The reader should note that citations to many of the graphical figures provided in the work are not provided with the figure, but rather are indicated within the text, where the particular figure is first mentioned. Sometimes chapters focus on providing numerous summaries of the opinions and findings of various other authors rather than rigorously promoting and supporting the authors own thesis.  The strength of these chapters, however, lie in providing a reader a good outline of Polish scholarship on crime and penology, and for this reason the book would fit well in an academic law library’s criminal law or comparative law collection.

AALL 2015 Recap: Customary and Religious Law Interest Group Meeting

By Susan Gualtier

Front page of CARLIG flyer distributed at FCIL-SIS Exhibit Hall table.

Front page of informational flyer distributed at the FCIL-SIS Exhibit Hall table.

The Customary and Religious Law Interest Group (CARLIG) met on July 19 at 11:30 as part of the FCIL-SIS Jurisdictions Interest Groups Joint Meeting. The group briefly discussed the year’s progress, which included acquiring approximately 35 members in My Communities, developing several programming proposals for the 2015 conference, and publishing an article in AALL Spectrum describing the group’s formation, purpose, and goals. The majority of the discussion then focused on 1) improving communication with the group’s membership in order to generate better response to the My Communities posts; 2) increasing the number of blogging and book review opportunities on customary and religious law topics and soliciting participation by the group’s members; and 3) developing and prioritizing additional projects for the coming year.

CARLIG intends to continue proposing conference programming, and brainstormed a few ideas for the 2016 conference. The group discussed the possibility of putting together a panel of librarians and researchers who are currently working on comprehensive online portals or printed bibliographies of religious law resources. Kelly Buchanan, of the Library of Congress, also shared some preliminary information relating to an Islamic law program to be held at the Library of Congress in December. The group discussed potential opportunities for collaboration between CARLIG and the Library of Congress staff, which has been working on increasing the number of available customary law and religious law resources.

In addition to planning substantive programming, the group decided that CARLIG’s primary focus over the upcoming year should be to create teaching/research toolkits for customary law and for each of the major religious law systems. The purpose of these toolkits will be to encourage more librarians to incorporate customary and religious law research into their FCIL research classes or their presentations in substantive law classes. CARLIG will also work on some of the ideas proposed at the 2014 conference, including creating bibliographies of core resources for use in collection development, and identifying the major library collections in customary law and in each of the major religious law systems.

Book Review: Emerging Challenges in Privacy Law, Comparative Perspectives

By Christina GlonEmerging Challenges - cover page

Emerging Challenges in Privacy Law, Comparative Perspectives (Norman Witzleb, et al., eds, Cambridge University Press 2014). 477p. incl. index.  Hardcover $165.00

Emerging Challenges in Privacy Law, Comparative Perspectives is a collection of essays adapted from programs presented at the “Emerging Challenges to Privacy Law: Australasian and EU Perspectives” conference held in February 2012 at Monash University in Melbourne, Australia.  To accommodate for the fast-moving development of privacy issues, a few essays have also been specifically commissioned for inclusion in this collection to provide broader coverage of the big issues developing since early 2012.  While there is a decidedly heavier focus on European fundamentals, Australian history and/or advances in privacy protections are also discussed in several of the essays.

The collection is organized in six parts and provides a little bit of something for anyone interested in privacy and data protection around the globe.  Some topics covered are quite broad (Privacy and the Internet), while others are very narrow in focus (protecting the anonymity of young people in Anti-Social Behaviour Orders).  Additionally, the collection offers a nice balance of discussions on theory and the abstract (“[Convention 108] is the only global data protection treaty we are ever likely to see”) as well as detailed discussions about the nuances contained in some privacy arenas (the five categories of “intrusion on seclusion” violations).  Finally, several of the essays provide much-needed historical context for the development of privacy frameworks in many different areas of privacy law because it is truly impossible to understand where we are and where we should go with privacy law without first exploring where we have been and how we got to where we are today.

Part I of the collection provides an overview of both the Australian and European Union data protection frameworks from three different perspectives – that of Australian Privacy Commissioner (Timothy Pilgram), of the European Data Protection Supervisor (Peter Hustinx), and finally of an Australian privacy advocate (Nigel Waters, Principal, Pacific Privacy Consulting).  All three “agree on the challenges facing data privacy law reform” and the importance of enforcement of data protection laws, however, there is significant disagreement on successful expansion of those laws and enforcements over territorial / jurisdictional boundaries and consistently defining and protecting these rights on a global scale.

Part II provides the much needed fundamentals of the primary documents that have shaped privacy protections in the European Union.  Specifically, Chapter 5 examines the architecture of privacy protection in EU through the exploration of current privacy rights and the documents that granted and guarantee those rights (pre-2012 reform proposals).  Documents discussed include the well-known European Convention of Human Rights (ECHR) as well as the formal adoption of the more recent Charter of Fundamental Rights (2009).  Discussions also touch on “data protection” in conjunction with Convention 108 (1981), Directive 95/46/EC (1995), and continue up to the proposed reforms offered in January 2012.

Chapter 6 focuses on one particular document (Convention 108) and provides food-for-thought about how far privacy protections can really evolve globally.  Renowned author and scholar, Professor Graham Greenleaf proffers, “[Convention 108] is the only global data protection treaty we are ever likely to see” because no other organization (save the UN) has the capability nor the desire to draft such a global document and current efforts to update and globalize Convention 108 could eliminate the need for an additional global document.

Part III of this collection gets into the real nitty-gritty of some very specific privacy violations.  First, Chapter 7 addresses privacy beyond the unwanted dissemination of private information to that of “physical privacy.”  Professor Moreham explores the patchwork of legislative, criminal, and common law measures in England to prevent this “intrusion on seclusion” (including several “slippery slope” examples of each of the five categories of intrusion – unwanted listening and audio recordings; unwanted watching, following, photographing and/or filming; unwanted access to personal documents or files (hardcopy or electronic); unwanted access to home and personal belongings; and harassment).  In Chapter 8, Professor Michael Tilbury explores several alternative modes of protection from intrusion based in tort law and weighs the pros and cons of creating new causes of action in tort law and/or implementation of a “privacy rights-based model” to specifically enumerate privacy “wrongs.”

Part IV continues this in-depth analysis by examining surveillance frameworks in the United Kingdom, Australia, and the United States (Chapter 10) and the creation of Anti-Social Behaviour Orders (UK) and Prohibited Behaviour Orders (Australia) (Chapter 11) to prohibit “publication of anything that could identify that a young person has been involved in criminal proceedings” (page 229) in order to uphold the longstanding tradition of protecting the anonymity of young people.

Part V deals extensively with privacy issues and the Internet.  Chapter 12 dives deep into development of the Internet, “privacy-invasive and privacy-enhancing features” of the Internet, and the effects (if any) the proposed Data Protection Regulation may have on the future of the Internet.  Chapter 13 deals explicitly with the “right to be forgotten” in the EU data protection framework.  Chapter 14 compares and contrasts privacy models in the European Union, Australia, the United States, Malaysia, Singapore, and finally, Chapter 15 explores cloud computing in the European Union generally and in Germany, specifically.

Part VI circles back to the media and how the courts in the United Kingdom and Australia should balance the rights of the media and free speech with the rights of the public and witnesses to privacy.  It is unfortunate that these two chapters were moved to the end of the collection as they provide the perfect complement to Parts III and IV.  Chapter 16 explores the use of anonymity orders to protect (from media disclosure) those involved in judicial proceedings, while Chapter 17 deals explicitly with interlocutory orders in defamation actions.

This collection of essays offers a robust dialog of past, present and future successes and challenges of privacy protections around the globe.  It is an excellent collection for gaining a well-rounded understanding of the trailblazing European Union privacy frameworks and offers a mix of hope and cautionary tales to help us move forward in our united and global quest to find balance in privacy rights frameworks.