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I·CONnect

Blog of the International Journal of Constitutional Law

Five Questions with Antoni Abat Ninet


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin


In “Five Questions” here at I-CONnect, we invite a scholar to answer five questions about research and writing in public law.

This edition of “Five Questions” features a short video interview with Antoni Abat Ninet, Professor of Comparative Constitutional Law at the University of Copenhagen.

Asked to identify his favorite publication among the many he has authored, he chose Constitutional Violence: Legitimacy, Democracy and Human Rights, a book published by the Edinburgh University Press.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on June 3, 2020
Author:          Filed under: Reviews
 

The EU Judiciary After Weiss – Proposing A New Mixed Chamber of the Court of Justice: A Position Paper

Daniel Sarmiento, Universidad Complutense de Madrid, and J.H.H. Weiler, NYU School of Law

There is little point in rehearsing in length, yet again, the all too justified laments about the unfortunate decision of the German Constitutional Court (“BVerfG”)  in the case of Weiss on the European Central Bank’s public asset purchase program.

Given the trivial nature of the BVerfG’s substantive “beef” with the European Central Bank (“ECB”), the economic impact will be correspondingly trivial. A simple question by an MEP to the ECB which, it seems someone needs reminding, is only answerable to EU Institutions, will enable it to point to its publically available records which will demonstrate, Urbi et Orbi, the breadth and depth of its deliberative process. And, ironically, in a spectacular twist of the Law of Unintended Consequences, many believe that the dramatic shift in Merkel’s approach to the crisis, is due in no small part as a reaction to the Weiss decision.

But the profound damage to the integrity of the Union’s legal order and its rule of law cannot be overstated. Yes, there can be, though hardly in this case, legitimate concerns about jurisdictional overreach of the Union. It is the ease with which the BVerfG brushed aside a decision of the Court of Justice and the grounds given for such, given the reputation (previously) enjoyed by the BVerfG, which will leave indelible traces with a potentially grave spill-over effect.

If every constitutional or high court of each of our Member States were to emulate the German example, it would really spell the end of the Union as an integrated legal space of justice and the rule of law and fatally damage the single market.

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Published on June 2, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Maja Sahadžić, Research Fellow (University of Antwerp)


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Germany ruled that external division in the context of pension sharing following divorce is compatible with the Basic Law when the provisions are applied in a manner that ensures conformity with the Constitution.
  2. The Constitutional Court of South Africa dismissed an application for leave to appeal a Supreme Court judgment on the binding nature of postnuptial contracts between married couples.
  3. The Constitutional Court of Germany concluded that monitoring the internet traffic of foreign nationals abroad partly breaches the Constitution.
  4. The Constitutional Court of Albania refused to review the appointment of a suspended vetting judge.
  5. The Supreme Court of Nepal ordered the government not to charge any cost to the people living under the poverty line and low-income returnees from abroad while testing the coronavirus infection.
  6. The Constitutional Court of Kosovo ruled that a decree appointing a new prime minister to replace the acting prime minister is legal.

In the News

  1. The Parliament of China approved the controversial Hong Kong security legislation.
  2. The Central Election Commission of Bosnia and Herzegovina postponed local elections due in October for six weeks after political rows held up the adoption of the annual state budget.
  3. The Ministry of Foreign Affairs of Germany summoned Russia’s ambassador over a hacking attack on German parliament in 2015.
  4. The Parliament of Lebanon ratified a $300m aid package for low-income families and vital sectors of the economy as the government attempts to stave off an economic collapse exacerbated by the coronavirus pandemic.
  5. The Parliament of Latvia became an online e-parliament and went live.
  6. The Federal Parliament of Germany debated on relaxing blood donation rules for LGBT+ men.
  7. The Parliament of Myanmar approved a budget for the country’s defense at the International Court of Justice against genocide charges.
  8. The Parliament of Bulgaria adopted a new food law about food safety.
  9. Antigua and Barbuda’s House of Representatives passed a cryptocurrency regulation bill towards becoming digital asset-friendly destinations in the Caribbean.
  10. The Parliament of Hungary banned gender recognition.

New Scholarship

  1. Malavika Prasad and Gaurav Mukherjee, Reinvigorating Bicameralism in India 3(2) University of Oxford Human Rights Hub Journal (2020) (showing how the decline of the parliamentary upper house in India manifested itself in the recent passage of a controversial biometric identification law, and arguing that a revival of parliamentary processes and sub-national politics, instead of constitutional litigation, can reinvigorate bicameralism).
  2. Viktoria Potapkina, Nation Building in Contested States, Comparative Insights from Kosovo, Transnistria, and Northern Cyprus (2020) (providing an overview of current nation-building processes in contested states).
  3. Cornelia Weiss, The Nineteenth Amendment and the U.S. “Women’s Emancipation Policy” in Post-World War II Occupied Japan: Going Beyond Suffrage, 53 Akron Law Review 387 (2019) (exploring the influence of the post-WWII military occupation of Japan on women’s constitutional rights and realities) 
  4. Irena Rosenthal, Democracy and Ontology, Agonism between Political Liberalism, Foucault and Psychoanalysis (2020) (investigating the relationship between liberal democracies and ontology, that is, philosophical claims about the constitution of agents and the social world).
  5. Xenophon Contiades and Alkmene Fotiadou (eds.), Routledge Handbook of Comparative Constitutional Change, (2020) (providing a comprehensive reference tool for all those working in the field and a thorough landscape of all theoretical and practical aspects of the topic).
  6. Francesco Biagi, European Constitutional Courts and Transitions to Democracy (2020) (examining the role of three generations of European constitutional courts in the transitions to democracy that took place in Europe in the twentieth century).
  7. Matej Avbelj, The European Union under Transnational Law, A Pluralist Appraisal (2020) (setting out the relationship between both transnational and EU law by exploring practical concrete problems that transnational law has posed to the EU).
  8. Joana Mendes and Ingo Venzke, Allocating Authority: Who Should Do What in European and International Law? (2020) (illustrating that public authority is relative between actors and relative to specific legitimacy assets).

Call for Papers and Announcements

  1. The South African Institute for Advanced Constitutional, Public, Human Rights and International Law (a center of the University of Johannesburg) and the Konrad Adenauer Stiftung organize the online panel discussion „Constitutional Law, the Global South and COVID-19: Comparing Colombia, South Africa and India“ to be held live on Zoom on 9 June 2020 from 15:00 to 16:30 (South African time – GMT plus 2). To register, send an email to naomi@saifac.org.za.
  2. The International Forum on the Future of Constitutionalism invites all to register for an online course on “Judging in Times of Crisis: Conversations with High Court Judges around the World,” featuring Supreme and Constitutional Court judges from Brazil, Canada, the Caribbean, Italy, Portugal, South Africa, and Taiwan.
  3. The European Policy Centre and the German Council on Foreign Relations invite to the online Policy Dialogue „Opening a Pandora’s box? The impact of the Karlsruhe decision on the EU’s rule of law agenda“ to be held online on 3 June 2020 from 11:00 to 12:30 (CEST).
  4. The International Forum on the Future of Constitutionalism invites participants to register for the course “The Future of Liberal Democracy: Global Dialogues with Leading Scholars”. The six-week course will be held live on Zoom starting on July 22, 2020.
  5. Friedrich Schiller University Jena organizes the workshop „International Patron-Client Relations in Secessionist Conflicts: Empirical Insights and Conceptual Innovations“ in Dornburg on 1-4 October 2020. The deadline for applications is 5 June 2020.
  6. The Baxter Family Competition on Federalism announces the call for applications. The deadline for applications is 1 February 2021.
  7. The Journal of Ethics and Legal Technologies invites papers for a special issue dedicated to „Responding to the Pandemic: Technological and Ethical Implications of Covid19 on Legal Education“. The deadline for submission is 15 June 2020.
  8. Loyola University Chicago School of Law hosts the Eleventh Annual Constitutional Law Colloquium in Chicago on 6-7 November 2020. Abstracts are due by 19 June 2020.
  9. The European Public Law Organization and the European Law & Governance School announce summer courses offered online.
  10. The International Forum on the Future of Constitutionalism welcomes all to register for an online seminar on June 12, 2020, to debate the question “Is the U.S. Constitution Broken?” featuring Mark Graber, Jamal Greene, Sanford Levinson, and Julie Suk.

Elsewhere Online

  1. Brian Christopher Jones, A single written UK constitution may only make things worse, UK Constitutional Law Association Blog
  2. Ronan Cormacain, Instinct or rules: making moral decisions in the Cummings scandal, UK Constitutional Law Association Blog
  3. Dele Babaloa, Federalism and the Covid-19 pandemic: the Nigerian experience, UACES Territorial Politics
  4. Julian R Murphy, Divided we fall? – Division and coordination in federal systems during a time of crisis, BACL
  5. Ross Booth, Academics and pandemics: A student’s perspective during the lockdown, AfricLaw
  6. Russell A. Miller, The German Constitutional Court Nixes Foreign Surveillance, Lawfare
  7. Abdurrachman Satrio, Checking the Unchecked Power: The Role of the Indonesian Constitutional Court during the Pandemic, IACL-AIDC BLOG
  8. Ali Yildiz and Leighann Spencer, The Erosion of Property Rights in Turkey, IACL-AIDC BLOG
  9. Cristina Fernández González, The Covid-19 Whistleblowers, Eureka!
  10. Dan Farber, What’s in a Name? “Climate change”? “Disruption”? “Crisis”? “Emergency”? Why is this so hard?, Legal Planet
  11. Elisa Minsart and Vincent Jacquet, Permanent joint committees in Belgium: involving citizens in parliamentary debate, The Constitution Unit
  12. David Kenny, Remote sittings for Ireland’s parliament: questionable constitutional objections, The Constitution Unit
  13. Trésor M. Makunya, DRC’s Constitutional Court: Broken shield in overseeing the executive in emergencies?, ConstitutionNet
  14. Eva Pils, China’s Response to the Coronavirus Pandemic: Fighting Two Enemies, Verfassungsblog
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Published on June 1, 2020
Author:          Filed under: Developments
 

Special Undergraduate Series–Uganda’s Recent Decision on Public Order Management Act, 2013: When the Constitutional Court Failed Constitutional Interpretation


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


Rahul Garg, National Law University, Jodhpur, and Paras Ahuja, National Law University, Jodhpur

On 26th March, 2020, the Constitutional Court of Uganda, in a five-judge bench decision, held Section 8 of the Public Order Management Act, 2013 [hereinafter, “POMA”] to be in violation of the Constitution of Uganda. The provision entitled the Inspector General of Police with the power to stop or disperse public assemblies/meetings upon the fulfilment of certain conditions. This landmark decision in Human Rights Network Uganda v. Attorney General [hereinafter, “HRNU”] marks itself as a critical-point in the history of free speech, right to protest and freedom of assembly in Uganda. Additionally, it also serves a clarion call to the entire world, since legislations like POMA and provisions akin to Section 8 specifically, are not exclusive to Uganda but resonate across jurisdictions (here, here, and here). In this post, we provide a critique on the reasoning of the court and its digression from the core principles of constitutional law and statutory interpretation.

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Published on May 31, 2020
Author:          Filed under: Developments
 

Convocatoria Primer Número en Español: International Journal of Constitutional Law (ICON)

El International Journal of Constitutional Law (ICON) tiene el placer de invitar a la comunidad académica hispanoparlante a enviar artículos originales para ser publicados en el primer número que ICON publicará completamente en español.  

ICON busca generar un espacio internacional para la comunidad académica hispanoparlante interesada en el estudio del derecho público, mediante la publicación de artículos científicos escritos en español. Los artículos serán publicados en un número especial de ICON, que operará con las mismas formalidades y procedimientos que los números regulares de la revista. De esa manera, el número especial será incluido en la plataforma de Oxford University Press y los artículos aparecerán en todos los índices respectivos (incluyendo SCOPUS, entre muchos otros). Además, los artículos serán de acceso y descarga gratuita.

Los artículos deben ser originales (no se aceptarán traducciones de artículos previamente publicados en inglés o en otro idioma) y deben cumplir con los mismos requisitos, tanto formales como sustantivos, que aquellos exigidos para los artículos publicados en inglés. Entre otros, los artículos no deben superar las 14.000 palabras (incluyendo notas al pie de página) y no deben ser sometidos a la consideración de otras revistas de manera simultánea. Adicionalmente, todos los artículos deben incluir un título, palabras claves, y un resumen en inglés. El resumen debe sintetizar el argumento central del artículo en no más de 300 palabras.

En especial, buscamos artículos que, teniendo un contenido teórico relevante, busquen realizar contribuciones genuinas y originales a algunas de las siguientes disciplinas: teoría constitucional, derecho constitucional, derecho internacional y derecho administrativo. Aunque no es excluyente, en ICON también promovemos la utilización de perspectivas multidisciplinarias que utilicen las herramientas de ramas tales como la ciencia política, los estudios socio-legales y la teoría política. Sin perjuicio de que daremos preferencia a aquellos artículos cuyas contribuciones sean relevantes para países hispanohablantes, también se considerarán estudios cuyas conclusiones puedan ser de un interés teórico más abstracto o ser una contribución al constitucionalismo comparado.  

Los mejores artículos serán seleccionados para ser enviados a arbitraje externo. En base a los arbitrajes, el equipo editorial decidirá cuáles autores serán invitados a revisar y reenviar sus trabajos y, posteriormente, cuáles artículos serán aceptados para publicación en el primer número completamente en español de ICON.  

El plazo para la recepción de trabajos es el 7 de enero de 2021. Las bases se encuentran disponibles pinchando aquí. Los artículos deben ser enviados a través del sistema ScholarOne, disponible aquí. En caso de que los autores no tengan una cuenta, deberán crear una.

En caso de consultas, por favor enviarlas a iconassociateeditor@nyu.edu  o contactarse directamente con los editores en jefe de este número de ICON, Marcela Prieto (mprieto@law.usc.edu) y Sergio Verdugo (sverdugor@udd.cl).

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Published on May 30, 2020
Author:          Filed under: Editorials
 

Five Questions with Ana Robalinho


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin


In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about scholarship.

This edition of “Five Questions” features a short video interview with Ana Robalinho, an incoming doctoral student at the Yale Law School and currently a law clerk at the Federal Supreme Court of Brazil in the Chambers of Justice Luís Roberto Barroso. She holds an undergraduate law degree from the University of Brasilia as well as two master’s degrees in law, one each from the Yale Law School and the University of São Paulo.

Asked to identify her favorite paper among the ones she has authored, she selected Brazil in Comparative Perspective: The Legacy of the Founding, and the Future of Constitutional Development, published in the Journal of Constitutional Research.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on May 28, 2020
Author:          Filed under: Reviews
 

Governments of National Unity: A Potential Solution to Legitimacy Crises Caused by the Pandemic

Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

One of the social distancing measures that some governments have considered (or indeed already implemented) to fight the Covid-19 pandemic is delaying previously scheduled elections. In a representative democracy, this must be seen as one of the most extreme steps a government can take. It could certainly be a legitimate way to slow the spread of the virus. Additionally, concerns about the fairness of holding an election under conditions where many potential voters may feel unsafe participating might further support a decision to postpone. Yet, the threat that such delays to elections pose to the foundational assumptions of representative democracy is significant. Moreover, given the ongoing uncertainty about a resolution to the pandemic, there can be no guarantee about exactly when it may be “safe” to reschedule an election. In this post, I explore what several relevant constitutions have to say about scheduling elections. I also draw on historical precedents to inform a discussion of one potential means of shoring up the legitimacy of a government thus denied the imprimatur of public votes: a government of national unity.

By the end of May 2020, approximately six months after the emergence of the Covid-19 virus, at least 17 countries have delayed a previously scheduled election.[1] The list of countries contains a wide spectrum of democratic performance, including several countries where the delay raises significant concerns, such as Ethiopia and Poland. Experts in each of these countries will have more to say about the extent to which the pandemic required this delay, and the extent to which governments have exploited the pandemic to pursue illegitimate political goals. It should be noted that in the Polish case, it is the opposition that has pushed to postpone the election. My purpose here is not to examine that question, but rather to explore a potential intermediate solution to the crisis of legitimacy that a delayed election may provoke.

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Published on May 27, 2020
Author:          Filed under: Developments
 

COVID-19 and the Bound Executive

Tom Ginsburg, University of Chicago, and Mila Versteeg, University of Virginia

The COVID-19 pandemic has prompted a wide variety of governmental responses as it makes its way around the globe, and scholars have been tracking them from many different angles.

In a new paper, we argue that the pandemic response should modify our understanding about the exercise of emergency powers.  A conventional view is that emergency power is by necessity highly concentrated in the executive, who alone has the speed, information and decisiveness to respond to sudden crisis.  The design of emergency regimes purports to limit the discretion exercised, and to prevent abuse by executives.  Some scholars, following Carl Schmitt, go further to argue that law cannot constrain the political discretion that lies at the heart of emergency response. They argue that the executive is essentially unbound by legal constraints, and that this is a good thing.

COVID-19 offers an opportunity to test these propositions, which were typically developed in the context of national security crises such as war and invasions.  To examine whether the Schmittian case holds up, we have gathered our own original data on coronavirus responses around the world, complementing other efforts by the Centre for Civil and Political Rights, Oxford University, International IDEA, and scholars such as Ittai Bar Siman-Tov and Alejandro Cortés-Arbeláez.  Our data focuses on the legal bases of the response, distinguishing between constitutional and legislative invocations of emergency, and also examines the roles of courts, legislatures and subnational governments during the crisis.

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Published on May 26, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Eman Muhammad Rashwan, PhD. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Assistant Lecturer of Public Law, Cairo University, Egypt.


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The First Senate of the German Federal Constitutional Court held that the Federal Intelligence Service (Bundesnachrichtendienst – BND) in its current form regarding surveillance powers over foreign telecommunications violate fundamental rights of the Basic Law. The court ruled that the challenged provisions may continue to apply until the end of 2021 in order to allow the legislator to enact new provisions taking into account the constitutional requirements.
  2. The Constitutional Court of Latvia found unconstitutional the Environmental Protection and Regional Development Minister Juris Puce’ (For Development/For) decree halting survey of local residents of the Ikskile Region on the pending administrative-territorial reform.
  3. The US Supreme Court temporarily blocked the release of former Special Counsel Robert Mueller’s grand jury material to the Democratic-led House of Representatives. The House Judiciary Committee has been attempting to obtain the material, which is collected from witnesses about President Trump.
  4. The Supreme Court of India refused on May 20 to stay the Citizenship Amendment Act (CAA) yet again on a fresh plea that it was inconsistent with the Assam Accord, which was designed to prevent the local Assamese from becoming a demographic minority in their states.
  5. The Constitutional Court of Turkey ruled that preventing a prisoner from sending letters to civil organizations and public authorities violates the convict’s right to communication and makes him entitled to non-pecuniary damages.

In the News

  1. Two Afghani political rivals, Ashraf Ghani and Abdullah Abdullah, who both declared themselves the winner of last September’s presidential elections, could finally reach a power-sharing agreement. According to this agreement, which was signed on May 17, Ghani is confirmed as President, while Abdullah is to lead the newly established National Reconciliation High Council; the two also share 50-50 authority over cabinet appointment and other responsibilities. The agreement also proposes constitutional amendments that should undertake an electoral reform in Afghanistan to avert a future crisis.
  2. Albanian President Ilir Meta proposed a 14-point “peace” plan regarding the electoral and judicial reform in the country. Among the main points, Meta highlighted the establishment of Political Council, which is to appoint a Chief Negotiator for EU accession as well as decide unanimously for any constitutional or legal amendments.
  3. Helen Suzman Foundation (HSF) asked on May 21, the South African Constitutional Court to issue an order directing Parliament and the Executive to resume their duties regarding initiating, preparing, considering and passing legislation to regulate the Covid-19 crisis management. The Foundation fears that in such a situation, the Minister of Cooperative and Traditional Affairs (Cogta) has much power.
  4. The Parliament of Angola approved changes to the Civil Protection Law on May 20 to face the COVID-19 threat. The amendments enable the enforcement of measures outside a scenario of the state of emergency, which is currently in force in the country.
  5. On May 21, the Philippines’ House Committee on constitutional amendments to the 1987 constitution halted its sessions in the shadow of the COVID-19 pandemic.
  6. Days after the Malaysian Parliament put off a vote on the opposition challenge against the appointment of Muhyiddin Yassin as Prime Minister, Malaysian King declared on May 18 that this appointment was proper and constitutional.

New Scholarship

  1. Maja Sahadžić, Can Asymmetrical Constitutional Arrangements Provide an Alternative Answer for the Disputed? Bringing Constitutional Asymmetries into Play in the Middle East Peace Process, Perspective on Federalism (2020) (exploring constitutional asymmetries as a mechanism for accommodating diversity in the Middle East peace process)
  2. Alan Greene, Derogating from the European Convention on Human Rights in Response to the Coronavirus Pandemic: If not Now, When?, Forthcoming, European Human Rights Law Review (2020) (arguing in favor of the use of de jure declared states of emergency in accordance with Article 15 of the European Convention on Human Rights to deal with the COVID-19 pandemic)
  3. Oren Tamir, Constitutional Norm Entrepreneuring, Forthcoming, 80 Maryland Law Review (2020) (answering how precisely constitutional norms change and ultimately collapse, and whether there is something actors can do to influence these processes, and then implementing the article’s framework to the present moment of democratic recession, both in general and in the United States)
  4. Melissa Crouch, Pre‐emptive Constitution‐Making: Authoritarian Constitutionalism and the Military in Myanmar, 54(2) Law & Society Review (2020) (explaining how pre‐emptive constitution‐making limits a transition to liberal democracy and contributes to authoritarian‐regime resilience, and identifying “military‐state” constitutionalism as a variation of authoritarian constitutionalism in Myanmar)
  5. Sujit Choudhry and Mark Tushnet (eds.), “Symposium: Participatory Constitution-Making,”  International Journal of Constitutional Law (2020) (featuring different dimensions of the participatory constitution-making, including Icelandic constitutional process, the role of citizens and representative elites, women and participatory constitutionalism, and Fiji case in a comparative context)

Call for Papers and Announcements

  1. The School of Law of the Singapore Management University invites applications for a virtual conference on “Global Public-Private Law Approaches to the COVID-19 Pandemic,” which will be held on September 10, 2020 (abstracts due June 15, 2020). The conference will explore in detail the impact of the COVID-19 pandemic within the public and private law spheres, to further comparative insight and learning into how different legal systems around the world have grappled with particular public and private law aspects of the pandemic.
  2. The IACL-AIDC organized Research Group “Gender and Constitutions,” which hosts the Observatory on COVID-19 effects on gender equality.” Scholars, practitioners, and activists willing to contribute are invited to send small posts (1500-3000 words) in English, French, or Spanish to vrscotti1@gmail.com.
  3. The University of Milan invites young scholars to submit papers for its webinar on “Academic Freedom under Pressure? New State and Social Challenges in a German-Italian Comparison,” to be held on September 24-25, 2020. To answer the call, the applicant should submit an abstract of 200-300 words by June 15, 2020.
  4. The International Forum on the Future of Constitutionalism welcomes all to an online course on “The State of Canada’s Constitutional Democracy,” featuring leading scholars in conversation with registrants on the major questions in Canadian constitutionalism today.
  5. The Peter Mackell Chair in Federalism at the Faculty of Law, McGill University, is collecting sources on the intersection between federalism-writ-large and COVID-19. The compendium is updated weekly, and the team welcomes relevant articles, links, etc. at federalism-covid19.law@mcgill.ca.
  6. The International Forum on the Future of Constitutionalism invites all to register for an online course on “Judging in Times of Crisis: Conversations with High Court Judges around the World,” featuring Supreme and Constitutional Court judges from Brazil, Canada, the Caribbean, Italy, Portugal, South Africa, and Taiwan.
  7. The MENALegalNetwork.org invites abstracts for an expert workshop on the State of Emergency and COVID-19 in the MENA Region. The Workshop will take place online via video-conference over two consecutive days. The output from the Expert Workshop will be published in an edited volume with an international publisher or a special issue in a journal. The deadline for abstracts is May 31, 2020.
  8. The International Forum on the Future of Constitutionalism welcomes all to register for an online seminar on June 12, 2020, to debate the question “Is the U.S. Constitution Broken?” featuring Mark Graber, Jamal Greene, Sanford Levinson, and Julie Suk.
  9. The Editorial Committee of Public Law Journal welcomes submissions to the journal’s ‘analysis’ section dealing with issues relating to the public law dimensions of the current Covid-19 pandemic. Pieces to be considered for the January 2021 issue should be submitted to the editors by the end of June 2020. Pieces to be considered for inclusion in the April 2021 issue should be submitted by the end of September 2020.
  10. The International Forum on the Future of Constitutionalism presents a free live online seminar on “The Law Faculty Hiring Process: Insights from Hiring Chairs and New Hires.” This free seminar will be held live on Zoom on Friday, June 19, 2020, from 2:00 pm EDT until 3:30 pm EDT. The Zoom details will be provided to all course registrants.
  11. Hamburg Institute of Law & Economics welcomes participants for its digital webinar on “The Practice of “Paralleljustiz” among Arab “Clans” in Germany: Economic Resources, Family Networks and Social Capital.” The webinar is one of the Hamburg Lectures series and will be held on May 27, 2020.
  12. The International Forum on the Future of Constitutionalism invites participants to register for the course “The Future of Liberal Democracy: Global Dialogues with Leading Scholars”. The six-week course will be held live on Zoom starting on July 22, 2020.

Elsewhere Online

  1. Foluso Adegalu, The right to peaceful assembly and the COVID-19 pandemic: a threatened right; an ironic connection, AfricLaw
  2. Mary Hui, While the world wasn’t looking, Beijing re-wrote the rules in Hong Kong at startling speed, QUARTZ
  3. Oliver Garner, Squaring the PSPP Circle; How a ‘declaration of incompatibility’ can reconcile the supremacy of EU law with respect for national constitutional identity, Verfassungsblog
  4. Andreas Schueller, Tools to Violate International Law: Armed Drones in Germany and the Government’s Legal Position, OpinioJuris
  5. Rory Fraser, Guyanese must commit to dealing with long term political crisis that has blighted country for 50 years, Stabroek News
  6. Victor Paul Borg, Rule of law reforms reflect Prime Minister’s reluctance to shift power, the shift
  7. Adam Liptak, Supreme Court Won’t Block Surgery for Transgender Inmate, The New York Times
  8. Oreste Pollicino, Fighting Covid-19 and Protecting Privacy Under EU Law — A Proposal Looking at the Roots of European Constitutionalism, IACL-AIDC BLOG
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Published on May 25, 2020
Author:          Filed under: Developments
 

Special Undergraduate Series–COVID-19: The Indian Supreme Court’s Abdication of Constitutional Duty


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


Prannv Dhawan, National Law School of India University, and Anmol Jain, National Law University, Jodhpur

Judicial restraint is necessary in dealing with the powers of another co-ordinate bench of the government; but restraint cannot imply abdication of the responsibility of walking on that edge.

Supreme Court of India, 2011

Introduction

It was April 1976. Indira Gandhi, the then Prime Minister of India, had imposed national emergency. In the midst of that, the Supreme Court was tasked to decide whether a citizen could challenge a detention order based on the fundamental rights as recognized the by Constitution. While answering in negative – and thus asserting the suspension of fundamental rights during the continuance of emergency, the majority held that:

In view of the Presidential order dated 27 June 1975 no person has any locus standi to move any writ petition under Article 226 before a High Court for habeas corpus or any other writ or order or direction to challenge the legality of an, order of detention on the ground that the order is not under or in compliance with the Act or is illegal or is vitiated by malafides factual or legal or is based on extraneous consideration.  

It is 2020, and the entire world is battling COVID-19. Unlike other countries like New Zealand, the United States and Singapore, the Indian response to the pandemic has largely been limited to executive decrees issued by the union government under the Disaster Management Act, 2005 and the state governments under the Epidemic Act, 1897. The powers under these two statutes are widely worded and are effectively in the form an executive carte blanche. Given that the legislative bodies, both at the federal and the state level, are not functioning, the only check on the extensive powers of the executive government is judicial oversight.

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Published on May 23, 2020
Author:          Filed under: Analysis