Satvinder S. Juss

Burqa-bashing and the Charlie Hebdo Cartoons

Using the two recent examples of the European Court of Human Rights decision in the ‘burqa-ban’ case of SAS v France and the horrifying events surrounding the ant-islamic Charlie Hebdo cartoons, this article shows how parody, free speech, liberal rights language and secular atheism are increasingly all used nowadays as pretexts for the exercise of power by western elites. Right-wing conservatives are dominating the debate over what it means to be free by using such pretexts to feed the militaristic foreign policy agenda of Western governments since 9/11 as well as the West’s cultural war against Islam. This article calls for the traditional Left to develop a better and more convincing narrative to rescue our basic freedoms which we once took for granted. Rights are detestable. Or, so we are led to believe by the modern Tories who want to abolish the Human Rights Act 1998, and replace it with a Tory Bill of Rights. They even

The post-colonial refugee, dublin II, and the end of non-refoulement

Refugee law has been variously conceptualised. Sometimes, as a humanitarian enterprise. Sometimes, as an extension of foreign policy relations based on national self-interests. But can it be better rationalised as a post-colonial enterprise? Does its treatment of Arabs, Afghans and others from the Middle East and North Africa – who are the major consumers of modern refugee law today – tell us something about refugee law? Does it serve to essentialise refugees as the ‘Others’ of the West? If so, can we conceive of a post-colonial refugee? Is modern refugee law an exercise in ‘post-colonialism’, which can be defined as a cultural critique that is opposed to imperialism and Eurocentrism? This essay explores this question through an analysis of the Dublin II Regulation system. This system limits the number of asylum-seekers entering the countries of the European Union. Recent cases confirm that even powerful evidence of individual risk is of no avail and serves as no bar to an asylum-seeker being removed from one European country to another, from where he or she risks being refouled to his/her own country, where he/she may be subjected to inhuman and degrading treatment. This essay tells that story.

Contemporary Issues in Refugee Law

Contents: Foreword Introduction PART I: OF REFUGEE CRISIS, NORMATIVE SOFT LAWS AND HUMAN RIGHTS 1. Refugee Law as Perpetual Crisis Catherine Dauvergne 2. The UNHCR Handbook and the Interface between Soft Law and Hard Law in International Refugee Law Satvinder Singh Juss 3. Is Humanity Enough? Refugees, Asylum Seekers and the Rights Regime Colin Harvey PART II: OF THE ADVENT OF NEW REFUGEES 4. A Child-rights Framework for Assessing the Status of Refugee Children Jason M. Pobjoy 5. Protecting Trafficked Persons from Refoulement: Re-examining the Nexus Susan Kneebone 6. Draft Dodger/ Deserter or Dissenter? Conscientious Objection as Grounds for Refugee Status Penelope Mathew 7. Gender Asylum Law: Providing Transformative Remedies? Siobhan Mullally PART III: OF THE SECURITIZATION, EXCLUSION AND INTERNAL RELOCATION OF REFUGEES 8. The Securitization of Asylum and Human Rights in Canada and the European Union Idil Atak and Francois Crepeau 9. Ethics and the Exclusion of Those who are Not Deserving of Convention Refugee Status James C. Simeon 10. Internal Relocation Alternative in Refugee Status Determination: Is the Risk/Protection Dichotomy Reality or Myth? A Gendered Analysis Rebecca Wallace Index

Statutory interpretation and the meaning of debt

1 Sarah Arnott, ‘Record Borrowing Casts Doubt on Osborne’s Plan’ The Independent, 21 October 2010, noting that in the UK ‘Government borrowing soared to a September record of £16.2bn last month’. In fact, the UK Government presently owes more than £1 trillion for the first time in its history. 2 Houlden J in Chittaro Manufacturing Co Ltd v May [1971] 3 OR 768, 770. 3 Laws of Bermuda (Title 15, Item 23) 1989 revision. STATUTORY INTERPRETATION AND THE MEANING OF DEBT

Church of England Marriages: Historical Particularity or Anomaly?

The article explores the nature and historical background on the role of Church of England marriages, questioning if its position is a constitutional particularity or an anomaly. It is argued that the existing law on marriage in England is neither historical peculiarity nor anomaly. The historical evolution of the law has favoured the Anglican Churchs position with regard to marriage. The constitutional and legal implications of the Church of Englands special role in marriages are discussed.

The Meaning of "Error" in Appellate Review

1. To what extent may an appellate tribunal disagree with a tribunal of fact? What does it mean when an appeal court makes a finding of “error” on the part of the lower tribunal? In short, what are the limits of appellate review? The question is important because appellate courts frequently borrow epithets of “error” and “plainly wrong” from the judicial review courts without making clear the differences in their particular usages. Yet, when these yardsticks of review were fashioned by the common law, they arose in the context of a consideration of an exercise of a “discretion” by a tribunal of first instance. They applied equally to judicial and appellate review. So, is there something distinctive about the way in which an appellate court finds such an “error”? Should there be? The question is most salient in the field of immigration and asylum law where appellate review and judicial review frequently run side by side. However, it is also important in other jurisdictions.

Abandoning Vires-based Review

How should we see judicial review? And, how should the legal discourse on this subject be conceived? In The Constitutional Foundations of Judicial Review, Mark Elliott has produced an account of modern judicial review that is structural, deterministic, and based on foundational arguments of English Law. This well-written and wellresearched book represents the view of, what may be called, the “Cambridge School” of modern theorists, who justify judicial review in terms of Parliamentary Sovereignty and the Ultra Vires principle. They stand in a long line of illustrious contemporary thinkers such as, Sir William Wade, Dr Christopher Forsyth, Mr T R S Allan (if one takes his earlier work), and now Dr Mark Elliott. The book is important because it does not focus “on the desirability of a power of judicial review and its purpose”, which is a relatively simpler question, but on a more difficult and “logically prior question: That of the constitutional legitimacy of the power, the answer to which we must understand . . .”1. Up to now, this debate has centred around those who promote the common law model of judicial review, being based on normative considerations of justice and the rule of law, and those who promote a vires-based approach to judicial review, which argues that ultimately review can and should be seen as being based on the intent of Parliament. The common-law model is the “traditional” approach to judicial review because “in historical terms the courts did not conceive of review in terms of legislative intent, but reasoned in the manner argued for by advocates of the common law model”2. The “traditionalists” in the common-law camp were represented formerly by such stalwarts as Jennings, Heuston, and Marshall, and now by Craig, Jowell, Oliver, Bamforth, as well as practitioners such as Laws and Sedley LJJ. The vires-based model is the “modern” view of the administrative law because this arose when political forms of accountability began to decline and the courts began to see their role as keeping governmental institutions within their legal bounds, by reference to the will of Parliament. This book provides the most thorough and up-to-date account of both R E V I E W S 239