The Right to Gender Recognition before the Colombian Constitutional Court: A Queer and Travesti Theory Analysis

This article discusses the case-law on gender recognition of the Colombian Constitutional Court. It argues that the Court, paying attention to queer and trans theory and to the demands of trans activists, has interpreted mainstream constitutional rights in such a way that trans people can have their self-defined identities recognised. The article criticises the limitations of this case-law, which still does not explicitly include non-binary and gender fluid people. On the other hand, it highlights that the Court's doctrine has the potential to challenge both the gender binary and the very category of ‘sex’ or ‘gender’ in the law.     

Discrimination against Jewish Women in Halacha (Jewish Law) and in Israel

Democracy is supposed to allow individuals the opportunity to follow their conception of the good without coercion. Generally speaking, Israel gives precedence to Judaism over liberalism. This article argues that the reverse should be the case. In Section I it is explained what the Halachic grounds for discrimination against women are. Section II concerns the Israeli legal framework and the role of the family courts. Section III considers Israeli egalitarian legislation and groundbreaking Supreme Court precedents designed to promote gender equality. Section IV analyses inegalitarian manifestations of Orthodox Judaism in Israeli society today, especially discriminatory practices in matters of personal status. It is argued that Judaism needs to adopt gender equality because of Israel’s commitment to human rights. Israeli leaders should strive to close the unfortunate gap between the valuable aims and affirmations voiced in the 1948 Declaration of Independence and the reality of unequal political and social rights for women.     

Ideational Origins of Progressive Judicial Activism: The Colombian Constitutional Court and the Right to Health

Why do some constitutional transitions trigger the emergence of progressive judicial activism? This article addresses this question through an analysis of the creation of the Colombian Constitutional Court and its subsequent activism toward rights in general and the right to health in particular. This research suggests that ideational variables are crucial to explain this outcome. On the one hand, the Constitutional Court's behavior reflects the dominance of the institutional conception that it is the judiciary's role to help fulfill the promises of the constitutional text. On the other, programmatic beliefs about the relationship between the rule of law and market‐driven economic growth led powerholders to create the court and appoint judges with this orientation. The emergence of progressive judicial activism in Colombia, this analysis suggests, was the unexpected outcome of purposeful political choices made by proponents of neoliberal economics.     

Transgender Inclusion and Australia's Failed Sexuality Discrimination Bill

In 2013, one of the final acts of the Gillard government was to amend Australia's Sex Discrimination Act to add sexuality, gender identity and intersex variations as protected categories. This was not the first time the Commonwealth had considered anti‐discrimination legislation protecting LGBTI people. The most prominent example was the Democrats‐sponsored Sexuality Discrimination Bill, introduced to Parliament in November 1995, which included provisions to protect transgender people as well as gays, lesbians and bisexuals. The Senate referred the bill to an inquiry by the Senate Legal and Constitutional References Committee, which received 436 submissions. Approximately 100 of these submissions specifically addressed transgender discrimination, some advocating for the rights of transgender Australians, and others focusing their attacks against the bill based on the transgender provisions. This article draws on the concept of transgender citizenship to examine the transgender‐related aspects of the inquiry and the debates in parliament, to understand the ways that the public and politicians framed transgender rights in the mid‐1990s. These debates are telling in how transgender issues and anxieties over gender fluidity have consistently become an easy target in wider debates about equality for sexual and gender minorities.     

Between the Dock and a Hard Place: Hazards and Opportunities of Legal Pluralism for Indigenous Women in Ecuador

This article examines the challenges and opportunities of indigenous justice for women in Ecuador. The legal recognition of indigenous justice is a major component of democratization in the region. Yet it also raises the risk of institutionalizing detrimental gender biases within indigenous forms of law. Taking the Remache case as a point of departure, this article identifies some of the fault lines in legal pluralism and women's conflicted relationship with it. Rather than rejecting customary law, however, women advocate for their rights within it—lobbying for gender parity within indigenous justice in the 2008 Constitutional Assembly. As women's support for indigenous justice relocates legal authority, it also challenges conventional practices of state sovereignty. To understand the attractiveness of legal pluralism for women and its impact on the state, this study explores the confines of feminist alliances, the accessibility of indigenous justice, and its implications for state sovereignty.     

The basic law and the limits of toleration

Germany's Basic Law is claimed to represent a liberal‐democratic constitution. This article seeks to examine whether a constitution that permits the prohibition of parties (Art. 21.2 GG) and the suspension of individual rights (Art. 18 GG) deserves this label. The examination is based on the analytical framework provided by the liberal concept of toleration. For toleration to be a meaningful concept within liberal theory, it has to imply certain limits. The author concludes that the main purpose of Arts. 21.2 and 18 GG is to serve as a reminder of these limits of toleration while the practice of the Federal Constitutional Court reflects the liberal constraints on enforcing the limits of toleration.     

Contested Institutionalisation: Women's Policy Agencies and Challenges to Gender Equality in Germany

Germany has created one of the world's largest women's policy infrastructures. But the scope as well as the effect of institutionalising women's policy agencies is contested. Even committed proponents of gender equality note the agencies’ limited influence in important policy arenas. Critics of institutionalisation have used the fiscal crisis of the past decade to push efforts to downsize or diversify the mission of women's policy agencies. Building on theories of new institutionalism, this article attributes recent challenges to the institutionalisation of gender politics in Germany to three sets of factors: First, to tensions between strong formal gender equality rules and weak informal equality norms; second, to powerful internal and external veto players who use their leverage to prevent gender equality legislation; and, third, to a shifting policy discourse that has reframed gender equality language in gender mainstreaming terms and might lead to significant changes in the institutional gender equality architecture.     

Explaining Policy Outcomes in Federal Contexts: The Politics of Reproductive Rights in Argentina and Mexico

This article explains the political and institutional factors that affect reproductive rights policies in Argentina and Mexico. Consistent with the comparative literature on gender, politics and institutions, the article reveals that federal arrangements define the arenas in which advocates can challenge governments. The comparative analysis suggests that the content and variations of policy outcomes are not only determined by the legal distribution of such rights. Women's positions towards abortion and contraception was greatly shaped by partisanship and ideology, and this was critical to legislative outcomes, while the number of women legislators was only important to introduce the issues. Important for further research are the effects of institutional and party instability on women's organising in legislatures, and the relevance of links between women's groups outside legislature and political parties for the success of gender equality policies.     

La mujer en México: inequidad,pobreza y violencia

This article explores the main problems that Mexican women endure, especially those which arise from the inequality that they face in numerous social milieus. Despite the undeniable progress that has been made with respect to women's rights and equal opportunities, full gender equality still seems like a distant ideal for Mexico. There have even been important setbacks, such as access to healthcare, legislation that has been enacted that does not respect women's decisions over their bodies, or in the persistence of various forms of violence that they bear. This article will begin by exploring the advancement in rights which women have achieved, in order to later describe the problems that Mexican women still face in terms of work, health, social security, education, poverty, politics, and the violence which they still encounter.     

Concession or compromise? The politics of abortion in United Germany

Most GDR policies instituted to secure women's equality between 1949 and 1989 have been dismantled in the name of German unity, including freedom of choice regarding abortion. That right ceased to exist in May 1993, when the Constitutional Court imposed a number of western restrictions on eastern women as the new law of the land. This study addresses the post‐unity search for an acceptable compromise between the western constitutional mandate of foetal protection and the eastern guarantee of a woman's right to choose. It argues that a three‐year reform process which should have provided a positive introduction to the art of democratic compromise served instead as a negative socialising experience for Germans in the new Lander. Besides denying them a chance to render a meaningful policy contribution to their new state, the nature of the process has distorted East German perceptions of the quintessential ‘balance of power’ between legislative and judicial institutions under democracy. ‘Compromise’ has been attained, but consequences for the German Rechtsstaat are not all positive.     

The Turkish Constitutional Court and the Justice and Development Party (2002–09)

This article analyses the caseload of the Turkish Constitutional Court (TCC) during the Justice and Development Party's (JDP) tenure in office (2002–09). Contrary to expectations and public perception, TCC's caseload only showed a modest increase, reflecting increased legislative activity and the President's inability to influence parliamentary debates. As this article shows, judicialization of politics in Turkey preceded the emergence of JDP. Accordingly, it concludes that ‘controlled democratization' encourages judicial activism and can lead to ‘judicial tutelage’ over elected institutions, thus undermining the prospects for democratic deepening.     

Germany's Constitution and participation in international peacekeeping operations

In this article, Torsten Stein, Professor of Constitutional, European and Public International Law and Director of the Institute of European Studies at the University of Saarland, Saarbrücken, traces the constitutional development that has enabled Germany to take part in a meaningful way in United Nations peacekeeping operations (PKO). As in Japan, Germany's post-war Constitution (Basic Law) was held to prohibit such participation. Germany's Federal Constitutional Court, however, has found an interpretation of the Constitution that - without amending the Constitution or any other pertinent legislation - allows a "German solution" which reconciles the putative post-war prohibitions with Germany's obligations as a member of the United Nations. Stein, who is also a Colonel in the German Air Force Reserve, warns that the "five conditions" contained in Japan's 1992 Peacekeeping Operations Law are unrealistic in view of present day PKO, but envisages an interpretation of the Japanese Constitution that might follow the German example.     

Coloured Judgements? The Work of the Thai Constitutional Court, 1998–2016

Created in 1997 as part of a major constitutional reform, Thailand’s Constitutional Court has since become embroiled in several high-profile political controversies. Since the 2006 coup, because a number of such decisions have favoured one political camp and considering obvious close and long-standing relations between judges and political elites, questions have arisen about the court’s ability to act as an independent arbiter. Is this view justifiable? To answer that question, this article first analyses how the court has behaved across political administrations in 32 high-profile cases since 2001. It then turns to the socio-biographic profile of the bench, the politics of nominations and changes to its composition, particularly since 2006. Finally, the article considers data on participants in classes offered by the Constitutional Court, which makes it possible to better understand the links between Thai political and judicial networks. The analysis finds evidence of politically biased voting patterns and increasingly partisan nominations to the court, though formally appointment procedures are apolitical, which suggests the politicisation of the court and growing ties between judicial and political elites. These findings raise new questions about the public’s perception of the Constitutional Court’s legitimacy and prospects for the rule of law.     

Gender equality,Pan-Africanism and the diaspora

ABSTRACT

In 2003, the same year that the African Union (AU) officially recognised a role for the African diaspora in the future of continental Africa, it also adopted the Protocol on the Rights of Women in Africa, a document which seeks to enhance women's human rights across the Union. These official actions by this body, representing the vision of a more unified Africa, marks a new stage in a history of interactions, conversations and collaborations between Africa and its diaspora, as well as a renewed commitment to gender equity on the continent. This paper examines the feminist tradition within Pan-Africanism in the late 19th and early 20th centuries and the developments in relation to gender equality with the emergence of the new women's movement of the 1960s and 1970s. The United Nations’ Declaration of the Decade for Women heralded a new phase in the movement for gender equality in the world. These developments, however, are taking place within a context of neo-liberal globalisation, which has had many negative impacts on the peoples of the African diaspora. While it has contributed to the creation of some new millionaires of colour, it has also ruined the agricultural base of many economies, destroyed manufacturing (including indigenous crafts and production systems) and reduced the economic options open to most of our countries – unless they are oil and mineral-producing states. This article concludes with recommendations for greater South – South collaboration on issues of gender equality, including the production and dissemination of audio-visual materials to challenge the power of the globalised US media and its gendered images.     

Constitutional Contestation of Religion in Sri Lanka

ABSTRACT

Sri Lanka’s constitutional policy regarding religion affords the ‘foremost place’ to Buddhism and obligates the state to protect and foster the Buddha Sasana, whilst assuring the rights and freedoms of the other religions. By explicitly creating a special status for Buddhism, the constitution has produced the category of the ‘Other’ that has the potential to discriminate against minorities in a pluralistic society and to undermine the fundamental principle of equality. The creation of this distinction generated contestation during constitutional reforms. By examining reform proposals on religion, interview material and comparing the debates of the Constitutional Assembly (October/November 2017) with the Constituent Assembly debates (1970–71), this study retraces the evolution of the Buddhism Chapter and identifies the present contestations and their role in deciding a constitutional arrangement for religion.     

Pathways to Karlsruhe: A Sequence Analysis of the Careers of German Federal Constitutional Court Judges

Judges of the German Federal Constitutional Court can be seen as both judicial and political elites. Yet up to now there is no systematic work on the Court's' judges and especially their careers prior to their appointments. Using sequence analysis, this article identifies four relatively distinct clusters of career characteristics: academia, administration (and administrative courts), ordinary jurisdiction and politics. Judges whose career background is limited to the judicial sphere mostly advance from a level below the Länder to the Länder and then on to the federal level, while those with a background in politics or administration switch less often among them. Furthermore, little evidence was found to suggest that differences in the judges' career paths can be explained by reference to the body that elected them (Bundestag or Bundesrat) or the party that nominated them (CDU/CSU or SPD). The article also illustrates the possibilities of sequence analysis for elite studies.     

Life after judgment: the Nokotyana case re-examined*

The progressive realisation of socio-economic rights as enshrined in South Africa’s Constitution remains a pipe dream for many poor and vulnerable people, 23 years after the collapse of apartheid. In the case of Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others, the Constitutional Court (CC) decided on the interpretation of the rights of access to basic services such as sanitation and high mast lighting. In this case, community members from Harry Gwala informal settlement near Johannesburg compelled the state, through courts of law, to upgrade the settlement and to provide basic services. Although the CC did not engage with the content of the socio-economic rights claimed by the community, it did eventually order the state to upgrade the settlement within fourteen months of the judgment. This article discusses the extent to which the state complied with the judgement and what kinds of challenges were experienced in implementing the court order. Empirical data was collected through interviews with different actors. The findings highlight the complexities surrounding implementation of the court judgement.     

Indigenous African marriage and same-sex partnerships: Conflicts and controversies

ABSTRACT

In 2006 the Constitutional Court of South Africa ruled the common law definition of marriage to be unconstitutional because it did not accord same-sex couples the same benefits and responsibilities as heterosexual couples. This defect was corrected by the legislature with the enactment of the Civil unions Act. The recognition of same-sex partnerships or marriages by the Act reflects and acknowledges the diverse nature of a changing South African society. A question triggered by this legal development is the impact that same-sex partnerships will have on the country's customary law on marriage. This article presents a critical analysis of a possible co-existence between same-sex partnerships and customary laws on marriage. The author explores the customs upon which customary laws of marriage are founded, and assesses their flexibility in accommodating same-sex partnerships.     

From tragedy to comedy: Political reform in Thailand

Thailand's democracy has been profoundly influenced by mass struggle and tragic bloodshed. The political freedom now exercised by Thai citizens ia a direct result of continuous mass struggle against dictatorship, the high points of which were the 14th October 1973 and the May 1992 popular uprisings. Yet, at the same time, this freedom has also had its limits defined by the brutal crushing of Thailand's socialist movement on the 6th October 1976. This has meant that the present day parliamentary system is devoid of any element of class politics. It is this, more than anything else, which is responsible for the corruption and vote-buying in the electoral system. Recent attempts at political reform, culminating in the drafting of the 1997 Constitution, results from the work of a coalition between two separate and conflicting class factions in Thai society. On the one hand, “the People's Organisations” (N.G.O.s, campaigns for democracy, peasant and labour groups) demanded more rights and participation in decision-making. On the other hand, “the modernist liberal wing of the ruling elite” wished to see more efficient and stable government. The contradictions between these two political currents can be seen throughout the reform process and in Thai politics today. Attempts to cleanse Thai politics using a reformed Constitution, new election laws and newly established “independent bodies,” such as the Election Commission and Constitutional Court, are unlikely to succeed, since they fail to address the real basis of money politics in Thailand and rely on a narrow structuralist approach. A more realistic route to political reform would rely on the mobilisation of social groups on a class basis. Only when such groups organise to push for more social equality and justice inside and outside the confines of the present structures can there be true progress.     

Women prisoners in Turkey

Historically, the closure of a party is a common phenomenon in Turkish politics. While the recent case against the governing Justice and Development Party (Adalet ve Kalkinma Partisi, AKP) was reminiscent of this trend, the decision of the Constitutional Court demonstrated that there are changes in the dynamics of the Turkish political structure. Although the literature cites the so-called ‘28 February Process’, the impact of EU accession, and the learning effects of democratization as explanations for the distinction of the AKP from its predecessors, this article argues that the AKP is different due to its extended business network and newly defined conservative base. The decision of the court in the recent closure case against the AKP reflects this structural political change within the foundation of Islamic parties in Turkey. While the court acknowledged the political legitimacy of the party by taking a decision against its closure, it has revealed the general discontent regarding AKP's non-adjusted conservative/pro-Islamic policies by cutting down its financial means.