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Protecting Rights, Addressing Inequality: The Promise of Writs as Constitutional Transfer


Conference call for papers

The courts are often a key site of the struggle for the enforcement of rights and accountability. The rise of constitutional adjudication globally is usually framed within the context of the fall of the Berlin Wall and the creation of independent constitutional courts in many parts of the world over the past three decades. This development in constitutional review is held up as a key moment in the globalization of constitutional law and protection of rights. And yet, there have been prior moments in history when key ideas and institutions of constitutional review spread across regions and around the world.
For example, from the late 1940s, the prerogative writs as a set of common law remedies were included in writing in post-colonial independence constitutions across former British colonies, particularly across South Asia, as well as parts of Africa, the Pacific and the Caribbean (Crouch 2018). Constitutional writs – the remedies of habeas corpus, certiorari, prohibition, mandamus and quo warranto – are important remedies both historically and for contemporary modes of administrative/constitutional adjudication. In the immediate post-colonial era, the constitutional writs were a remedy sought for the protection of rights against the power of the state. While the postcolonial courts in Burma were among the first to award constitutional writs as remedies for rights protection in 1948, it is in India that the writs became associated with judicial activism. The writs in constitutional form were also included in the constitutions of Pakistan, Sri Lanka and Bangladesh, among other countries.
This workshop seeks to investigate the history, development and variations of this model of constitutional adjudication, following the transformation from the common law remedies of England to a constitutional means of protecting rights. It will also consider the symbolic status of constitutional writs, how the importance of these remedies has changed over time, who has access to these remedies, and what rights are protected through this mechanism of review. This workshop seeks to draw attention to the role of constitutional writs as legal transfers. It will consider these remedies at the intersection of constitutional and administrative law and rights protection.

Papers in the workshop will consider the following questions:
·        To what extent did courts have writ jurisdiction prior to independence from colonial rule (ie under the common law), and how was this power used to protect rights?
·        How did the Indian constitution-makers formulate and understand the importance of the constitutional writs and the relationship with the provisions on rights?
·        Why did other countries decide to include the constitutional writs in their independence constitutions? Was it part of a strategy of borrowing from the Indian constitutional model more generally? To what extent were specific discussion had over the inclusion of remedies and rights provisions?
·        To what extent has the use of the constitutional writs as a remedy for the protection of rights against the state and to address inequality changed over time? Following Anuj (2017), to what extent do the constitutional writs serve the middle class, rather than offering a remedy for the poor against the abuse of power?
·        Countries with constitutional provisions on quo warranto continue to grant this remedy, while its use has died out in Western common law jurisdictions. Why is this the case? When is quo warranto as a remedy granted and how in what kinds of cases is it used in today?
·        How does consideration of the emergence of constitutional writs change the broader narrative within comparative constitutional law and politics about when and how constitutional review emerged? What are the implications of this for the field?
  
Date of the Conference: 15-16 November 2019

Details of the Conference: The conference will be held at the University of New South Wales Law School. Presenters will be asked to submit a 8,000-10,000 word draft paper one week before the conference. The purpose of this workshop will be to produce a special journal issue or edited volume.
  
Applications: Applicants should send an 400 word abstract and short biography to Melissa Crouch at melissa.crouch@unsw.edu.au by 10 May 2019. Successful applicants who are based in Asia, or for academics whose proposed paper is on Asia but who are based in Australia, will have the cost of their travel and accommodation covered.



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