Category Archives: Constitutional law

Ukraine, Russia and the elusive grundnorm

I don’t pretend to understand the detail of the current situation between Russia and Ukraine, but it seems entirely reasonable to fear that this may well be the most significant threat to world peace since the Berlin Wall Crisis and Cuban Missile Crisis of the early 1960s.

Even if the situation does not spiral into open warfare (which thankfully still currently seems unlikely), it already poses a significant threat to the entire international order of stable national sovereignty and territorial integrity that has developed under the auspices of the United Nations in the wake of World War II. Situations where a nation invades a neighbour for the purpose of territorial aggrandisement are now so rare as to be almost unheard of, at least in the First World. We tend to forget that “might is right” was pretty much the international behavioural norm for the whole of human history up until that time. Indeed the entire phenomenon of European colonialism was based on a combination of the “might is right” philosophy and the inherently racist assumption of the manifest inferiority of non-white races.

It may well be that Russia has a plausible relatively recent historical claim that Crimea was once part of its territory, and its desire to secure ongoing access to the port city of Sevastopol for its navy fleet is at least understandable in geopolitical terms. Nevertheless, Russia’s apparent invasion of Crimea over the last few days is undeniably totally contrary to modern international law. If allowed to stand completely unchallenged, the modern system of national sovereignty underpinned by the United Nations may be imperilled. For example, one could imagine China using this precedent to justify a later invasion of Taiwan, to which it has historical territorial claims at least as plausible as Russia’s claims to Crimea.

No doubt that is why the United States is beginning to respond to the crisis in increasingly strident and bellicose terms, although European nations seem so far to be exhibiting a greater degree of diplomatic restraint.

However, what is to be done?

Perhaps part of the answer lies in sophisticated analysis and application of international constitutional doctrine as considered in the 2001 decision of the Court of Appeal of Fiji in Republic of Fiji v Prasad (‘Prasad’).  As UWS academic Michael Head explains:

The Court of Appeal of Fiji declared that the military-appointed Interim Government failed to establish that it was the legal government. It ruled that the Constitution Amendment Act 1997 (Fiji Islands) (‘1997 Constitution’) remained the supreme law of the country and had not been lawfully abrogated by the military commander, Commodore Frank Bainimarama, when he effectively took power on 29 May 2000, ten days after businessman George Speight’s seizure of Parliament.

Remarkably, Speight and Bainimarama actually obeyed the Court’s decision and surrendered power to the previous duly elected government. Sadly (depending on one’s viewpoint), the story did not end there. Bainimarama learned the despot’s lesson from the Prasad decision and staged a subsequent coup in which one of his first acts was to abolish the Court of Appeal and appoint his own hand-picked judges in its place. Indeed that coup was so successful that Bainimarama remains in control of Fiji today, despite somewhat ineffectual economic sanctions imposed on the country by Australia and New Zealand. Moreover Australia’s new Prime Minister Tony Abbott has just announced that sanctions will probably now be lifted and Fiji restored as a full member of the international community in good standing.

Nevertheless, the Court’s reasoning in the Prasad decision and subsequent academic analysis of it may hold important clues about how the current stand-off between Russia and Ukraine might productively be managed in a manner that is consistent with maintenance of the international rule of law.

The Court of Appeal considered the application of the international law doctrines of “successful revolution” and “necessity” as ways of assessing the legality of a post-revolutionary government regime. In particular, the Court considered the contribution of European jurisprudential scholar Hans Kelsen, who added to those doctrines his own notion of “effectiveness” to assess the legality in international law of a post-revolutionary regime.

Kelsen was a modern legal positivist scholar who sought among other things to propound an objective “pure theory of law” to provide a rationalist (if somewhat amoral) underpinning of international law doctrine relating to national sovereignty and related issues. His notion of the “grundnorm” is a significant part of his pure theory of law, with which this author has been known to torture CDU constitutional law students.  Kelsen’s interest in post-revolutionary constitutional legitimacy is understandable in the context of his lifelong commitment to positivist legal theory and also given that he was writing in the immediate aftermath of World War II and the breakdown of the European colonial system, when lots of new revolutionary regimes were establishing themselves, often by violent means and against the will of their former colonial masters. What criteria should other nation states apply in deciding whether to recognise a new post-revolutionary regime as lawful or legitimate? Should it merely be the new regime’s de facto possession of durable if despotic control at the barrel of a gun? Or should something more be required? Michael Head describes and critiques the Fiji Court of Appeal’s discussion of these issues in the Prasad decision:

In Prasad, the five Court of Appeal judges applied doctrines that British and American courts have fashioned over several centuries to determine whether to uphold the imposition of dictatorial measures (‘necessity’), or the outright seizure of power by the military or other authorities (‘successful revolution’). …

In most post-World War II cases on coups d’état, the courts made reference to the ‘principle of effectiveness’ enunciated by Austrian legal philosopher Hans Kelsen in his work General Theory of Law and State. Not to put too fine a point on it, Kelsen’s theory justified the seizure of power by force. Quoting his writings, judges ruled that coups did not need to command ‘universal adherence’, simply ‘a minimum of support’. …

In Prasad the judges expressed concern that Kelsen’s ‘principle of effectiveness’ might too readily reward a usurping regime. The judgment also spoke of a new regime having to prove that its rule was based on ‘popular acceptance and support’ as distinct from ‘tacit submission to coercion or fear of force’.  The holding of elections would be ‘powerful evidence of efficacy’.

It would be rash, however, to interpret this emphasis as evidence of a more democratic approach. It is, we should recall, in line with the Western powers’ demands for earlier elections in order to establish a more reliable regime that can command popular respect.

Far from laying down any new principle of democracy, the Court disagreed with a passage in the 1986 Grenada case that listed as one criterion for a successful revolution that ‘it must not appear that the regime was oppressive and undemocratic’. The Court stated that this condition ‘went too far’, without offering any explanation except to cite F M Brookfield’s view that the condition goes ‘to the legitimacy of a regime rather than its legality’.

This distinction is unconvincing. As many commentators have pointed out, it is, in reality, impossible to separate legality from legitimacy. …

Implicitly, Head asserts that international law ought to require some reasonable minimum level of democratic legitimacy or popular acquiescence as an essential condition for international recognition of the lawfulness of a new post-revolutionary government.

However, although international law on post-revolutionary regimes has not yet developed to the point Head implicitly argues (and I agree) is appropriate, application of these principles with the addition of a democratic element might well provide a principled way of resolving the current stand-off between Russia and Ukraine in a manner that upholds and even extends the rule of law.

The transitional regime now installed in Ukraine following the ousted pro-Russian former President Viktor Yanukovych fleeing the country, has clearly staged a “successful revolution” across most of the country. Moreover, it appears to command widespread if not universal voluntary adherence of most of the population. Perhaps even more importantly, it would pass almost any reasonable test of democratic legitimacy. Its accession to power was approved by the Ukraine Parliament, and it has pledged to hold early democratic elections. Accordingly, it merits international recognition not only on the criteria laid down by the Fiji Court of Appeal in Prasad, but also on the more rigorous principles that Michael Head appears to favour.

On the other hand, the Ukraine transitional regime would almost certainly not pass any of these tests in relation to the culturally Russian region of Crimea. For a start, it has not achieved effective de facto control of that region, although perhaps in part because its achievement of such control has been pre-empted by the manifestly illegal Russian invasion. However, and again perhaps more importantly, it is a fair bet that the majority Russian-speaking population of Crimea in no sense accepts the legitimacy or authority of the transitional regime and is unlikely to do so in the foreseeable future.

These diametrically opposing practical outcomes in the two parts of Ukraine may potentially provide the basis for a workable, peaceful and even principled solution. Perhaps America and Europe should aim at brokering a solution whereby Russia agrees to accept the lawfulness and legitimacy of the new Ukraine transitional regime across all of Ukraine except the Crimea region. Moreover, Russia would also agree to withdraw its forces from Crimea in return for the new Ukraine regime agreeing that an internationally-supervised democratic act of self-determination will occur in Crimea, with UN peacekeeping troops occupying that region until this act of self-determination occurs.

It might well be that such a solution could win the acceptance of both sides. The new Ukraine regime really wouldn’t have much practical choice, because it has no way of retaking Crimea by its own efforts given the overwhelming superiority of Russian military forces. As far as Russia is concerned, it could be very confident that the Russian-speaking majority in Crimea would vote either for full union with Russia or at the very least creation of an autonomous but strongly Russian-aligned new nation of Crimea.  It would attain its territorial and strategic ambitions while remaining a law-abiding member of the international community.

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Lock up refugees and throw away the key?

CDU Introduction to Public Law students should be taking careful note of the current public controversy over refugees indefinitely held in immigration detention as a result of adverse ASIO security assessments which they cannot effectively challenge. Secret evidence provisions in ASIO regulations mean they can be denied all knowledge of the reasons and supporting evidence for an adverse assessment.  In our recent topic 9 tutorial (judicial power and separation of powers) we looked at High Court decisions in the Gypsy Jokers and K-Generation cases, which both involved legislation containing similar secret evidence provisions to the ASIO situation currently affecting refugees.

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Judicial misbehaviour or just blunt speaking?

Magistrate Pat O’Shane

With Introduction to Public Law students due to study the topic judicial independence next week, it is an opportune time to examine a current situation involving allegations of judicial misconduct or incapacity on the part of NSW magistrate Pat O’Shane:

Ms O’Shane, who turns 72 in June next year, has been the subject of at least six previous complaints to the Judicial Commission of NSW, including one that was dismissed by its conduct division, which handles the more serious cases.

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Tobacco plain packaging and its constitutionality

[NB Written long before the High Court’s decision, which largely confirmed the ideas discussed here] The High Court’s innovation of publishing the parties’ submissions in pending matters on its website is an excellent one.  It allows academics, journalists and others more easily to get a clear idea of the questions in issue in important cases, and to analyse and dissect the parties’ arguments.

This process is especially interesting in the cigarette plain packaging case British American Tobacco Australasia Limited and Ors v. The Commonwealth of Australia.  The consensus of legal academic commentators seems to be that the tobacco companies don’t have much chance of success.  Although that was also my own initial reaction, having now perused the parties’ submissions I don’t necessarily agree.  BATA’s arguments are at least respectable and have some chance of success.

As most readers will be aware, BATA’s case primarily seeks to establish that the Gillard government’s Tobacco Plain Packaging Act 2011 (Cth) breaches Constitution s 51(xxxi) which reads:

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxxi)  the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws …

The High Court has repeatedly held that the provision is not breached by regulating use of a property right through laws of general application, nor by mere extinguishment of the right without more. The Commonwealth or someone else must acquire a ‘corresponding benefit of commensurate value’ flowing directly from the extinguishment, deprivation or “taking” (as US constitutional jurisprudence calls it) of the plaintiff’s property.  I will return to this point below, but first we need to examine the parties’ respective arguments as to exactly what property rights BATA owns.

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Gillard mining tax unconstitutional?

Author: Ken Parish

The threat of a High Court challenge to the Gillard government’s Mining Resources Rent Tax (MRRT) has received much publicity this week, following its passage through the Senate last Monday.  It’s rather strange in a way, because putative plaintiff Andrew “Twiggy” Forrest (on behalf of his corporate vehicle Fortescue Metals Group Ltd) merely announced that he was “seeking legal advice” about the prospects of such a challenge. Meanwhile, notoriously litigious mining billionaire Clive Palmer encouraged “Twiggy” while stressing that he wouldn’t be launching a challenge himself, and WA Liberal Premier Colin Barnett said his government wouldn’t do so either but would join as a party if “Twiggy” commenced proceedings.

Assorted legal commentators have expressed opinions in the media, even though none of us actually know whether proceedings will be commenced or what grounds “Twiggy” Forrest might advance.  Prominent tweeping QUT public law academic Peter Black appeared on ABC The Drum on Wednesday evening and opined that a challenge based on Constitution s 114 (Commonwealth can’t tax State property) might have prospects of success while other grounds probably don’t.  That is a view I initially shared, but after some further preliminary research over the last few days I’ve reconsidered.  Hence this article.

University of Sydney’s Anne Twomey also ventured some tentative observations on ABC’s PM radio program.  The opening blurb suggests she thinks a challenge “has some chance of success if it proceeds”. However a realistic reading of Twomey’s actual remarks suggests they might better be characterised as exhibiting polite scepticism about the prospects of a successful challenge.

My own preliminary and equally speculative thoughts are set out below for what they’re worth.

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Free speech, hate speech and human dignity

Federal Court Chief Justice Pat Keane

The audience at last night’s Austin Asche Oration witnessed an address by Federal Court Chief Justice Pat Keane which some might label as courageous in a Sir Humphrey Appleby sense. Without ever mentioning Bromberg J’s recent decision in Eatock v Bolt, Keane CJ cut to the heart of the central issue of controversy in current public debate.  That is, whether and how the law might appropriately balance the competing public interest imperatives involved in protecting freedom of political communication while simultaneously restraining socially destructive hate speech.

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