University of Melbourne

Posts by authors affiliated with University of Melbourne

21 February 2024

On the Politics of Non-Transparent Electoral Funding in India

Last week, a five-judge bench of the Indian Supreme Court delivered a significant verdict adjudicating the constitutionality of the Electoral Bond Scheme (“EBS”). The EBS introduced a novel method of making ‘anonymous’ donations to Indian political parties, both by individuals and a body of individuals. The judgment makes a democracy-enabling jurisprudential step in extending the right to information of voters to the details of political funding received by political parties in an effort to cement transparency and accountability as the central values of the electoral exercise.

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16 February 2024

Why the Russian Constitution Matters

Russia’s failure to become a democracy after the collapse of the Soviet Union is not an inevitable product of its history. On the contrary, it has been shaped by the adoption of a constitutional system of centralised power in the office of the president. Long term democratic reform will require more than just Putin leaving the office of the presidency. Avoiding a system of ‘Putinism without Putin’ will also require a new Russian constitutional foundation that breaks with centralisation and reshapes the later structural chapters of the constitution to balance power between institutions.

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01 February 2024

The Limits of Public Participation

In this piece, I critique the proposed people-driven constitution-making process in South Sudan, identifying some challenges that may hinder meaningful participation by the people. One is mass illiteracy: over 70% of the population is illiterate. This can impact the people’s capacity to meaningfully engage with some of the complex issues that may arise from the process. Another factor is that involving the people could exacerbate existing ethnic tensions in the country, as constitution-making is inherently divisive. My suggestion is to entrust the process to experts with oversight by parliament.

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24 August 2023

On the State of Academia in India

The Economics Department at India’s Ashoka University received an unexpected visit from the Federal Intelligence Bureau. The reason for this visit was a paper titled ‘Democratic Backsliding in the World’s Largest Democracy’ by Sabyasachi Das, an economist. In his research, Das meticulously examined 11 contested seats during India’s 2019 general elections and uncovered imbalanced outcomes that favored the ruling party, BJP. Das noted that ‘the results point to strategic and targeted electoral discrimination against Muslims, in the form of deletion of names from voter lists and suppression of their votes during election, in part facilitated by weak monitoring by election observers.’ The subsequent visit by the Federal Intelligence Bureau is just one among several incidents that highlight the precarious state of academic freedom in India.

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14 August 2023

An Attack on Indian Democracy

Last week, the Indian government introduced a bill in Parliament providing for, inter alia, the mechanism for appointing Election Commissioners in India. The bill proposes the creation of a three-member Selection Committee composed of the Prime Minister, a Union Minister nominated by the Prime Minister, and the Leader of the Opposition to make recommendations to the President in this regard. The proposed Executive-dominated Selection Committee raises several questions about the conduct of free and fair elections in India. In the paragraphs to follow, I first discuss a recent Supreme Court decision that preceded the introduction of this bill and how this bill, as a response to the Court decision, is instructive to constitutional drafters. I then discuss the possible approaches the Supreme Court of India could adopt when the new legislation is challenged to push back against the Executive’s undemocratic maneuvers.

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26 June 2023

Yevgeny Prigozhin and Russia’s Expanding Prerogative State

Over the weekend, the world’s attention was gripped as a well-equipped Russian private military company led by Evgeny Prigozhin seized control of a key Russian city and military hub, and marched on Moscow. Prigozhin’s actions reveal a deeper truth about Putin’s Russia: the absence of formalised, legal mechanisms for peacefully resolving high-level, intra-elite disputes. As the war in Ukraine drags on, what Ernst Fraenkel called the ‘prerogative state’ is expanding. This lawless realm of unchecked public power has no rules or institutions that can settle disputes among the Russian elite; these can only be resolved by Putin himself.

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03 May 2023

On the Path of Destruction

Sudan has yet gain slipped into a civil war, costing hundreds of lives and forcing tens of thousands of people to flee the country. Fighting the war are two generals - Abdel Fattah Burhan of the Sudan's Armed Forces and Mohamed Hamdan Dagalo of the Rapid Support Forces. This piece explains the background of this extraordinarily complex conflict and discusses its potential implications for the region and beyond. Bringing both military leaders to a negotiating table must now be the highest priority.

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31 August 2022

What Makes Responsible Government Responsible?

How important is it for a Parliament to know which Ministers are appointed to administer which departments? This odd question has been at the centre of a furore in Australia in recent weeks. It has focussed attention on the legal and political requirements for ‘responsible government’, to use the characterisation of the relationship between Crown, Ministers and Parliament that is in common use in parliamentary systems in the British tradition, including those in Australia. It raises some intriguing questions for the construction of the executive chapter of the Australian Constitution, which are all the more important in times of global concern about democratic decline.

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22 August 2022

A Defence of Scholactivism

A scholar motivated to achieve specific outcomes in her lifetime might be reasonably thought to bring a serious-mindedness, persistence and focus that arises from really caring about real-world effects of her work. And beyond scholarly energy, there is reason to suppose that the passion, commitment and even anger at injustice that often attends a scholactivist mindset might bring insight.

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20 April 2022

Russian Crown-Presidentialism

Many studying Russia have pointed to Vladimir Putin’s deliberate cultivation of charismatic authority through carefully staged photo ops and messaging campaigns. Yet, Putin’s power also draws on rational-legal authority. Putin draws his authority from detailed, constitutional rules that allow the president to dominate the Russian political system. The surprising importance of rational-legal authority in Putin’s Russia carries a number of important lessons for better understanding Russia and the role of constitutional rules in democratic governance.

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24 March 2022

Climate Law as a ‘Living Tree’

Last year, the Australian decision of a Federal Court judge in Sharma v Minister for the Environment made headlines around the world. In the decision, the judge found that the Federal Environment Minister owed Australian children a duty of care to prevent harm from climate change. This year, the Sharma case has once again attracted attention, albeit for the opposite reason. In March 2022, the Full Court of the Federal Court allowed the Minister’s appeal and overturned the primary judge’s finding of a novel duty of care. This decision has emphasised the limits of legal concepts and courts in addressing future climate damages. However, the unfavourable outcome does not mark the end for climate litigation in Australia.

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25 January 2022

Aggression, War Crimes, and the Indonesian Revolution

The specter of the Indonesian Revolution is still haunting our understanding of Dutch imperial violence. In this blog post, I want to highlight two central issues regarding the conflict’s legal history – one involving the alleged non-application of the laws of war to the conflict which has been a mainstay argument in Dutch official narratives, and the other regarding the ways in which we delineate today our legal-moral reasoning with respect to Dutch transgression.

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01 December 2021
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Corrupting Democracy?

This blog symposium introduces a new collaborative format between Verfassungsblog and the journal Verfassung und Recht in Übersee (VRÜ)  / World Comparative Law (WCL). Today, we inaugurate these joint symposia with the theme of the recently published VRÜ/WCL Special Issue on "Corrupting Democracy? Interrogating the Role of Law in the Fight against Corruption and its Impact on (Democratic) Politics". It thematises corruption and its conceptual pendant anti-corruption as prototypical hard cases for both the rule of law and for democratic politics.

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