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Blog of the International Journal of Constitutional Law

The Myth of a Constitution’s ‘Goodness’: What We Get Wrong about Afghanistan’s 1964 Constitution

Shamshad Pasarlay, Max Planck Foundation for International Peace and the Rule of Law

[Editor’s Note: This is one of our biweekly ICONnect columns. The views expressed in this column belong solely to the author and do not necessarily reflect the opinions of the author’s organization.]

On September 28, 2021, nearly two months after taking control of Afghanistan, the Taliban promised to install Afghanistan’s 1964 Constitution as an interim charter until a new constitution is written.[1] Two months later, former President Hamid Karzai urged the Taliban to codify and regulate the exercise of public power and use the 1964 Constitution as a starting point.[2] Notably, in 2001 after the collapse of Taliban’s first spell in power (1996–2001), the Bonn Agreement too inaugurated the 1964 Constitution as an interim basic law. On both occasions, a broader set of amendments accompanied the Constitution: the Taliban said the document’s norms that contradict the sharia would not be implemented, whereas the Bonn Agreement muted its chapters on the monarchy and the parliament. Setting aside what impacts these broad “amendments” may have on the basic identity of the 1964 Constitution, its use as an interim basic law has engendered exceptional praise and glory for a document that, in theory, moved Afghanistan from an absolutist monarchy to a constitutional one in the 1960s.

Importantly, the praise for the 1964 Constitution goes back to the time it was crafted. Scholars have lionized the document from all corners. It was called the “finest in the Muslim world,”[3] a “cherished symbol,”[4] a “liberal, enlightened, forward-looking, comprehensive and definitive”[5] constitution that “set a progressive orientation for the future,”[6] and a valuable case of the “meeting of liberal constitutionalism and Islamic modernism.”[7]

If constitutions are judged by their liberal content or methodological perfection, then the 1964 Constitution may merit the credit that is bestowed upon it. It protected a long list of liberal rights, entrenched, for the first time in the country’s history, separation of powers, and codified a proper set of checks and balances. However, a close, contextual analysis of the document and the process through which it was drafted paints an entirely different picture. It died in less than a decade and failed to generate useful outcomes that could legitimate the state or pilot political disputation through peaceful mechanisms. In fact, it exacerbated extant conflict and generated new sources of political tensions so much so that they ultimately brought down the Afghan monarchy in 1973.

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Published on January 26, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Sassari (Italy)


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Turkish Constitutional Court in its decision n. 2018/14884, published in the Official Gazette on 7 January 2022, evaluated Law No. 5651 on the Regulation of Internet Broadcasts and Prevention of Crimes Committed through Such Broadcasts (“Internet Law“). The Constitutional Court pointed out that the freedom of expression and the press had been violated by Article 9 of the Internet Law and made recommendations to the Turkish Grand National Assembly to reformulate the relevant provision.
  2. The U.S. Supreme Court refused a request from former President Donald J. Trump to block the release of White House records concerning the 6 January attack on the Capitol, effectively rejecting former President Trump’s claim of executive privilege and clearing the way for the House committee investigating the riot to start receiving the documents.
  3. The Constitutional Court of South Africa clarified the application of the new amendments to the Refugees Act to asylum applications. The Court ruled that refugees and asylum seekers can now apply for permits locally and stay in the country pending their asylum application.
  4. The impeachment trial of the Albanian President has been postponed to 1 February after a judge at the Constitutional Court tested positive for COVID.
  5. The Constitutional Court of Colombia accepted a judge’s motion to recuse himself from a vote on whether to decriminalize abortion, a decision that further delays that high court’s ruling.

In the News

  1. On 18 January, Roberta Metsola was elected president of the European Parliament.
  2. On 20 January, the European Parliament approved a draft set of measures to tackle illegal content online, to ensure platforms are held accountable for their algorithms and improve content moderation that will be used as the mandate to negotiate the final text of the Digital Service Act with the French presidency of the Council, representing member states.
  3. On 19 January, the U.S. Senate rejected a reform proposed by President Joe Biden. The goal of the reform was to change the Senate rules that require a majority of 60 percent to pass many laws. This would have favored the adoption of a voting rights bill that aimed to harmonize electoral rules at the federal level.
  4. The President of the Italian Chamber of Deputies has convened the Parliament in a joint session, with the participation of the regional delegates, to elect the new President of the Italian Republic. Voting will start on 24 January.
  5. On January 18, the Indonesian Parliament approved the transfer of the capital from Jakarta, on the island of Java, to a new city that will be built on the island of Borneo and will be called Nusantara.

New Scholarship

  1. Silvia Suteu, Eternity Clauses in Democratic Constitutionalism (2021) (analyzing unamendability in democratic constitutionalism)
  2. Aziz Z. Huq, The Collapse of Constitutional Remedies (2021) (critically examining the relationship between the protection of constitutional rights and the independence of the courts)
  3. Jeffrey S. Sutton, Who decides? (2021) (exploring the mechanisms of American federalism)
  4. Elizabeth L. Lambert, Michael Brown (eds.), Studies in Burke and in his time, (2021) (exploring Burke’s thought)
  5. Gürkan Çapar, How (Not) to Compare?: Not Being Inside, Nor Outside, Global Jurist (2021) (exploring the methodologies for comparative research)

Calls for Papers and Announcement

  1. ICON-S CEE Chapter is pleased to announce a roundtable around the new book by Silvia Suteu, Eternity Clauses in Democratic Constitutionalism (Oxford University Press 2021). The event will take place via Zoom on 3 February 2022.
  2. On Monday, the 16 May 2022, re:constitution and CESP – Department of Political Science, LUISS Guido Carli, in partnership with the University of Copenhagen, co-organize an international workshop on the theme “Freedom of Expression in the Digital Ecosystem: From the Wild Web to a European Lex Informatica?” The co-conveners welcome abstracts from senior and early career scholars, legal practitioners, and experts in the field. The deadline for submission of abstracts is 15 February 2022.
  3. The Centre of Excellence for International Courts (iCourts) and Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order (PluriCourts) are hosting a Summer School for PhD students in the field of international courts and international organizations. Summer School will take place in Copenhagen on 7-11 June 2022. The deadline for applications is 7 February.
  4. On 5 and 6 April 2022, the University of Siena and the University of Milan, together with the “Scuola Normale Superiore” of Pisa and under the patronage of RUniPace, will host in Siena an international Conference on “The Role of Women and Women’s Civil Society Organizations in Peace Processes.” A call for papers has been launched and will close on 1 March 2022.
  5. The International Journal of Parliamentary Studies invites scholars of all levels of seniority and types of experience to submit papers on parliamentary issues.
  6. The Ludovika University of Public Service will host the Global Conference on Parliamentary Studies on 12-13 May 2022 in hybrid form. The call for papers is open until 15 February.
  7. On 22 March 2022, Hasselt University will host the hybrid conference “State Neutrality and Religious Diversity in the Public Sphere and Public Education in Europe.” The deadline for conference registrations is 15 March 2022. The conveners have also launched a call for posters (only open to PhD students). The deadline is 15 February 2022.

Elsewhere Online

  1. Roni Mann, A more democratic Supreme Court? Not so fast, Verfassungsblog
  2. Roberto Gargarella, Restoring the Validity of Law in Democratic Societies,  Verfassungsblog
  3. Ece Göztepe, Silvia von Steinsdorff, A Matter of Pragmatism rather than Principle. How to Restore Constitutional Democracy in Turkey, Verfassungsblog
  4. Dragoș Călin, Case C-817/21, Inspecția Judiciară. Compatibility of the organization of an authority competent to carry out the disciplinary investigation of judges, which is under the total control of a single person, with the rules of the rule of law, Unio – EU Law Journal
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Published on January 24, 2022
Author:          Filed under: Developments
 

Unconstitutional Constitutional Changes and President’s Term Limit Evasion: a Series of Constitutional Frauds in Turkey

Neslihan Çetin, PhD candidate at the University of Paris I Panthéon-Sorbonne

Presidential and parliamentary elections in Turkey will take place in 2023. The debate around the presidential candidacy of Recep Tayyip Erdoğan is particularly impassioned among jurists in Turkey. Notwithstanding the recent announcements by the government-party AKP spokespersons of his candidacy, the question is whether he could run for office for the third time while the Constitution sets a two-term limit for the presidency.

According to article 101 § 2 and its exception in article 116 § 3, to stand as a candidate in elections, Erdoğan needs a three-fifths majority in parliament. After going through the potential alliances in parliament and crunching the numbers, passing this threshold seems unlikely for Erdoğan, if not outright impossible. In a bid to square this circle, his supporters present another argument that draws on the “blank slate theory” of presidential terms: when a new constitution with term limits is passed, these limits do not apply retrospectively, but only prospectively ( for blank slate theory, see; Versteeg, Horley, Meng, Guim, Guirguis 2020). The premise of the pro-re-election argument, hence, is that the 2017 amendment would be so profound that its legal effects would be equivalent to those of a brand-new constitution.

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Published on January 23, 2022
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Hate, Lies, and Democracy


Luís Roberto Barroso, Professor of Constitutional Law at the State University of Rio de Janeiro, Justice at the Brazilian Supreme Court, and President of the Superior Electoral Court


I.  The Digital Revolution

The world is living under the Third Industrial Revolution–the Technological or Digital Revolution–which began in the final decades of the 20th century, and is characterized by the massification of personal computers, smartphones and, most notably, the Internet, connecting billions of people all over the planet. The Internet has revolutionized the world of social and interpersonal communication, exponentially expanding access to information, knowledge, and the public sphere. Nowadays, anyone can express their ideas and opinions, and disseminate facts on a global scale.

Before the internet, the distribution of news and opinions depended to a large extent on the professional press. It was up to them to ascertain facts, disseminate information and filter opinions according to the criteria of journalistic ethics. The Internet, with the emergence of websites, personal blogs and, above all, social media, facilitated the wide circulation of ideas, opinions, and information without any filter. The negative consequence, however, was that it also allowed the spread of ignorance, lies and the practice of crimes of varied nature.

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Published on January 22, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Anubhav Kumar, Advocate & Young Researcher, LL.M (Constitutional Law), Maharashtra National Law University, Aurangabad, India (2021).


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court blocked President Joe Biden’s vaccination mandate for large business, which the justices deemed an improper imposition on the lives and health of many Americans – while endorsing a separate federal vaccine requirement for healthcare facilities.
  2. The Federal Supreme Court of Iraq provisionally suspended the newly-appointed speaker of the parliament temporarily while judges considered a challenge to appointment.
  3. Supreme Court of Canada to review decision on BC school trustee’s defamation case as to whether a defamation lawsuit by a school trustee in Chilliwack, BC, should proceed against the former president of a teachers union.
  4. The Turkish Constitutional Court evaluated law on Regulation of Internet Broadcasts and prevention of crime committed through such broadcasts in its decision and pointed out the relationship between freedom of expression and the press and Article 9 of the Internet Law and made recommendations to the Turkish Grand National Assembly for the reformulation of the relevant article.
  5. The Indian Supreme Court appoints 5 Member Panel headed by former Judge Indu Malhotra to probe into the Prime Minister’s Security breach in his latest visit to the State of Punjab for an election campaign.
  6. The Pretoria High Court rules South Africa’s controversial driving laws (South Africa’s Administrative Adjudication of Road Traffic Offences (Aarto) Act) unconstitutional.
  7. The Constitutional Court of Ecuador upheld the lower court’s ruling and reaffirmed the revocation of the environmental permit for the TSX-V-listed Cornerstone Capital Resources’ Rio Magdalena project. The permit related to an initial exploration phase in the Los Cedros protected forest at the Rio Magdalena project.

In the News

  1. In its first Judicial Vote of 2022, the US Senate sends Gabriel Sanchez to the California-based 9th US Circuit Court of Appeals.
  2. Australian government cancels Serbian star tennis player Novak Djokovic’s visa ahead of the Australian Open, likely to result in his deportation from the country.
  3. The European Court of Human Rights (ECHR) held Bulgaria’s laws on secret surveillance violative of the right to respect for private life under the European Human Rights Convention.
  4. The Government of Canada drops vaccine mandate for truckers to cross in from the United States.
  5. President of Fiji extends Supreme Court of India’s retired Judge Justice Madan B Lokur’s terms as the Judge of Fiji Supreme Court’s non-resident panel for three more years.

New Scholarship

  1. Tarun Arora, Pandemic and community’s sense of justice through suo motu in India (2021) (On solution to the paradox generated out of the inherent friction between constitutional authority of judicial review and resistance of judicial review of executive actions by a populist government)
  2. Maciej Bernatt, Mandate of Competition Agency in Populist Times, (2022) (On how the mandate of competition agencies is affected by actions taken by populist governments.)
  3. Faye Bird, ISIL in Iraq: A Critical Analysis of the UN Security Council’s Gendered Personification of (Non)States (2022) (Comprehensive and critical gendered discourse analysis of the UN Security Council’s response to the Islamic State of Iraq and Syria (ISIL)
  4. Malcolm Feeley, Malcolm Langford, The Limits of the Legal Complex (2021) ( Provides comprehensive application of Nordic exceptionalism in the field of legal practice and challenges the explanatory theory of the legal complex, arguing instead that lawyers’ political activism is strategic choice not just socialization)
  5. Samuel Fonteles, Ukrainian Constitutional Court: Attacks and Backlash (2021) (Analyzes Ukraine’s Constitutional Court , The tolerance interval theory and the backlash thesis, through a case study, which is, the decision issued on October 27, 2020, that held unconstitutional part of the powers of the National Agency for the Corruption Prevention (NAPC)
  6. Abdul Ghafur Hamid, Mohd Hisham Mohd Kamal, Muhammad Munir Lallmahamood, Muhannad Munir Lallmahamood, Superior Responsibility Under the Rome Statute And Its Applicability To Constitutional Monarchy: An Appraisal (2021) (Comprehensive examination on whether constitutional monarchs could be responsible under the doctrine of superior responsibility.
  7. Tarunabh Khaitan, Guarantor (or ‘Fourth Branch’) Institutions, (Forthcoming 2022) (On guarantor institutions’ (such as electoral commissions) character in a political context which shall be more trustee like rather than agent like)
  8. Manwendra K Tiwari , Swati S Parmar, Of Semiotics, the Marginalised and Laws During the Lockdown in India, (2021) (On semiotics of law-making acts ‘criminal’ bereft of ‘moral culpability ‘and state’s selective enforcement of lockdown laws in India)
  9. Gibney Mark, Türkelli Gamze Erdem, Krajewski Markus, Vandenhole Wouter, The Routledge Handbook on Extraterritorial Human Rights Obligations (2021) (Comprehensive scholarship on transnational human rights obligations into a comprehensive and wide-ranging volume.)

Calls for Papers and Announcements

  1. The Ludovika – University of Public Service, Department of Constitutional and Comparative Public Law is organizing Global Conference on Parliamentary Studies in Hybrid Mode on 12-13 May 2022 and calls for abstract. The proposals can be submitted till February 15, 2022.
  2. The European Journal of Legal Education calls for paper for its 3rd Issue of online line peer reviewed legal journal published annually and dedicated to publishing high quality research and scholarship on legal pedagogy across Europe. One can submit the paper by 14th February 2022.
  3. The ‘South Asian Postgraduate Law Conference 2022 (SAPLawC’ 22)’ organized by Faculty of Law, University of Colombo, Sri Lanka Faculty of Law, University of the Punjab, Lahore, Pakistan Faculty of Legal Studies, South Asian University, India Maharashtra National Law University Mumbai, India Jindal Global Law School, OPJGU, Sonipat, India on 25th-26th November called for papers. It is open for postgraduate law students, who currently follow LL.M., M.Phil. and Ph.D. research degree programs affiliated to institutions within South Asia. The last date of Submission of Abstract is 30th January 2022.
  4. The Digital Justice Centre, University of Wroclaw has a vacancy for one post-doc researcher to conduct research on the impact of new technologies on criminal justice systems. This is a research position therefore no teaching is required. The application deadline is February 3, 2022.
  5. The Faculty of Law, the Chinese University of Hong Kong will host an online Conference on Teaching and Learning in Law – Directions in Legal Education 2022. The Conference will be held online on 10 – 11 June 2022. The conference calls for proposals for papers to be presented. The deadline for submission of proposals is Friday 28 January 2022.
  6. Call for Editors: The Editorial board of Indian Law Review invites application for the position of Editors on its Editorial board. Applicants are expected to have an academic position in a law school or in a university department/school. Researchers who work outside the university space in research institutions are also eligible to apply. Last date to apply is February 15, 2022.
  7. The University of Hamburg and the Legal Priorities Project are co-organizing the 2022 Multidisciplinary Forum on Longtermism and the Law on 9-11 June 2022. The guiding theme of this Forum is the role of law in sustaining and improving life hundreds or even thousands of years into the future. Participants can submit abstract by 15th February 2022 here.

Elsewhere Online

  1. Richard Clayton QC, The Government’s New Proposals for the Human Rights Act Part 2: An Assessment, U. K Constitutional Law Association.
  2. Ash Stanley-Ryan, J.C. And Others v. Belgium: The Delicate Balance of State Immunity and Human Dignity, Strasbourg Observers.
  3. Julia Emtseva, Collective Security Treaty Organization: Why are Russian Troops in Kazakhstan? EJIL Talk!
  4. Cem Tecimer, Restoration without the Constitution: Why constitutional restoration in Turkey does not require formal constitutional change, Verfassungsblog.
  5. Mariam Kizilbash, Pakistan’s Inspirational Transgender Persons’ Law- Some Years Later, Oxford Human Rights Hub.
  6. Richard Ecclestone, As a former officer, I’m horrified by England and Wales’s Police Bill, Open Democracy.
  7. Quoc Tan Trung Nguyen, Hopeful signs: How some southeast Asian nations are snubbing Myanmar’s military leader, The Conversation.
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Published on January 17, 2022
Author:          Filed under: Developments
 

Transnational Elite Self-Empowerment and Judicial Supremacy

Cristina E. Parau, Oxford University

[Editor’s Note: This is a reply to Conor Gearty’s recent review of Dr. Parau’s Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018).]

This note is in reply to a review of my monograph Transnational Networks and Elite Self-Empowerment: The Making of the Judiciary in Contemporary Europe and Beyond (OUP 2018) by LSE Professor Conor Gearty, Vice-President of the British Academy, titled “The Courts in Europe Today: Subverting or Saving Democracy?” and published in 16 European Constitutional Law Review 770-780 (2021). I would like to express my gratitude to the British Academy for sponsoring my research on the monograph and to Prof. Gearty for reviewing it at such length. He is enviably qualified as a human rights lawyer who can draw on first-hand observation to critique my reasoning and make the opposite case with passion. I will address his subtle blend of praise and blame for the sake of advancing our understanding of Judiciary institutions, their design and designers, which have not garnered the scholarly attention that many recent events urge. I hope my rebuttal may rise to the challenge of being commensurately incisive in the pursuit of the truth which we both seek, and that readers discern a synthesis emerging which may supersede each of our contributions.

Let me first summarise my monograph for those who have not read it. I ask merely that readers patiently attend to the following, that I may establish an overarching context. It begins with the new democracies in Central and Eastern Europe (CEE). All of their post-Communist Judiciaries were patterned on an institutional blueprint I called “the Template”, created by interveners, members of a transnational, elite community of interest in public policy that I called “the Network Community”. The Template empowered Judiciaries at the expense of the national majoritarian institutions; part of a worldwide trend since 1990 to transfer power away from representative government toward non-majoritarian, often supra-national organs. In a practical sense, this transfer privileges judges and other legal professionals over “political” actors; as well, indirectly, as the Network which the elites amongst them identify with; – rendering the Judiciary no longer a “co-ordinate” or co-equal branch of government but systematically super-ordinate to the other two of the three. The Template was made an informal condition of acceding to the European Union, suggesting that the Commission regards Judiciary supremacy (or “Juristocracy” as Gearty and his colleagues term it) as prerequisite to or at least as ideal for the supremacy of EU law. This is just one case of elite self-empowerment through popularly unaccountable institutions; others include central banks, administrative bureaux, intelligence agencies, even elite media. In CEE, Juristocracy has been everywhere formally institutionalized but nowhere questioned, until quite recently, by the politicians and publics most interested because most entangled in it; – (unlike in America, the land of its ulterior origin).

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Published on January 16, 2022
Author:          Filed under: Analysis
 

2021 International Review of Constitutional Reform | Call for Expressions of Interest


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin


Last year, the first edition of the International Review of Constitutional Reform (ISBN: 978-1-7374527-0-6) was published in open access. The IRCR is the first global scholarly effort to gather jurisdictional reports on all forms of constitutional revision around the world over the past year. Each report is authored by scholars and/or judges. The reports explain and contextualize events in constitutional reform in a given jurisdiction.

We are currently accepting expressions of interest from scholars and/or judges who wish to contribute a report to the next edition of the IRCR. Should you wish to join the team, please register your interest here by January 24, 2022.

Reports will be due by May 1, 2022. The co-editors will send detailed instructions for writing and submitting reports. The instructions will include a template for how to structure your report and what to include in it.

The IRCR is a joint initiative of the Constitutional Studies Program at the University of Texas at Austin and the International Forum on the Future of Constitutionalism. The book is co-edited by Justice Prof. Dr. Luís Roberto Barroso and me, along with an outstanding team of Associate Editors: Giulia Andrade, Elisa Boaventura, Bruno Cunha, Matheus Depieri, and Júlia Frade.

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Published on January 14, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Irina Criveț, PhD Candidate in Public Law, Koç University


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court will hear arguments challenging Biden’s administration COVID vaccine and test mandates for some employers and health workers.
  2. The Constitutional Court of Spain rejected an appeal against a lower court’s decision that did not consider it a crime for a former relative to ask a woman for oral sex as a means of paying for debt. The court did not consider the case of ‘special constitutional significance.’
  3. The Constitutional Court of Slovakia upheld a complaint of the NJSC ‘Naftogaz of Ukraine’ and found that the Ukrainian company had incurred unreasonable costs in enforcement proceedings in the Slovak Republic in a dispute with IUGAS ‘Italia Ukraina Gas.’
  4. The US Supreme Court will decide whether to hear a case that challenges a Georgia law that places an extraordinary burden of proof – beyond reasonable doubt – on capital defendants seeking to be spared execution who are intellectually disabled.
  5. The Constitutional Court of South Africa ruled that sections of the Intestate Succession Act and Maintenance of Surviving Spouses Act are unconstitutional. The unconstitutional sections refer to the inheritance rights of life partners.
  6. The Hungarian Constitutional Court unanimously upheld the decision of the Parliament to call for a referendum ‘On Child Protection.’
  7. The Supreme Court of Canada will hear several cases challenging Section 33.1 of the Criminal Code that says if a person voluntarily consumes alcohol or other intoxicants to the extent that they lose conscious control of their actions and commit a crime of violence, they are accountable for that crime because they have failed “markedly” to meet reasonable community standards. The ‘extreme intoxication” defence in criminal cases will negatively affect realizing women’s right to equality and equal right to personal security.  

In the News

  1. The Parliament of Austria adopted a new law allowing terminally ill patients or patients with a permanent, debilitating condition to end their own lives. The law was prompted by a decision of the Constitutional Court which claimed that the previous ban on assisted suicide was unconstitutional.
  2. Pakistan appoints its first female Supreme  Court Judge. Justice Ayesha Malik is the first female judge on the Supreme Court in the 75 years since the country’s independence.
  3. The Parliament of Jordan approved a constitutional amendment that established the ‘National Security and Foreign Policy Council’ to oversee security, defence and foreign policy matters.
  4. The European Court of Human Rights declared inadmissible, by a majority, a man’s claim against a Belfast bakery that refused to make him a cake decorated with the message “support gay marriage”.
  5. The European Court of Human Rights issued interim measures for the first time in a freedom of association case concerning the contested dissolution of Russia’s oldest human rights NGO, the Memorial.

New Scholarship

  1. Richard Albert, Yaniv Roznai, Emergency Unamendability: Limitations on Constitutional Amendment in Extreme Conditions, (2022) (examining whether, in a period of emergency, constitutions should prevent their own amendment)
  2. Sam BookmanEdward WillisHanna WilbergMax Harris, Essays in Honour of Bruce Harris Pragmatism, Principle, and Power in Common Law Constitutional Systems (forthcoming 2022) (addressing matters concerning common law constitutions, such as the powers of the states, the role of judges, and the Crown-Indigenous relations through a pragmatic point of view)
  3. Philipa Collins, Putting Human Rights to Work  Labour Law, the ECHR, and the Employment Relation (forthcoming 2022) (providing a comprehensive analysis of the law of dismissal in England and Wales, courts’ practice while dealing with the rights dimensions of cases and proposes an innovative solution – the Bill of Rights for Workers)
  4. Conrado Hübner Mendes, Roberto Gargarella, and Sebastián Guidi (eds) The Oxford Handbook of Constitutional Law in Latin America, (2022) (providing a comprehensive study on constitutions, controversies, institutions, constitutional rights in Latin America)
  5. Jeffry S Sutton, Who Decides? States as Laboratories of Constitutional Experimentation (2022) (exploring how American federalism allows the states to serve as laboratories of innovation for protecting individual liberty and property rights as well as structural guarantees)

Calls for Papers and Announcements

  1. The Law Unit of ATINER calls for papers to its 19th Annual International Conference on Law, which will take place on 11-14 July 2022, in Athens, Greece. The conference is open to academics and researchers from all areas of law. The DL for abstract submission is March 21st, 2022.
  2. The HSE University and Freie Universität Berlin calls for abstracts to the Doctoral Workshop “Populist Mobilization, Globalization and Locality in East and West”, 7-8. April 2022. The workshop aims for gathering papers addressing the following themes: Elite Contestation, Migration and Diversity, Populist Economics, and the Role of History. The DL for submission of abstracts is January 31st, 2022.
  3. The Journal NAD. Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società (New Authoritarian Regimes and Democracies: Law, Institutions, Society) welcomes submissions for no. 1/2022. The issue will contain a special section on “Women in authoritarian systems. A Multidisciplinary Approach”, in collaboration with RUniPace (Rete Università per la Pace). The DLs for submissions are April 15th, 2022 for Essays and May 15th, 2022 for Others.
  4. The Centre for Strategic and International Studies’ Africa Program invites applications to the Africa Acceleration Policy program. See more details concerning the eligibility requirements. The DL for applications is January 12th , 2022.
  5. The joint academic venture of Bio Forensic Research Centre, Italy and School of Law, Manipal University Jaipur, called for papers for the “Law and Forensic Science: A Global Challenge” a three-day, online hybrid, international conference taking place in Rome, Italy.
  6. The Gonzaga University School of Law invites proposals for paper presentations at its Human Rights Conference in Florence, Italy, on May 26-27, 2022. The theme of the 2022 Conference is Artificial Intelligence, Government, Corporation, and Human Rights. The DL for abstract submission is January 30th, 2022.
  7. The Åland Islands Peace Institute invites researchers in peace research, international law, political science or related disciplines to apply for the Åland Peace Fellowship 2022. The DL for application is January, 23rd 2022.

Elsewhere online

  1. Ece Göztepe, Silvia von Steinsdorff, Ertuğ Tombuş, A Matter of Pragmatism rather than Principle: How to Restore Constitutional Democracy in Turkey, Verfassungsblog
  2. Helmut Philipp Aust,“Realizing Material Justice“: Ne Bis in Idem and the Rule of Law under Pressure in Germany, Verfassungsblog
  3. Roberto Gargarella, Restoring the Validity of Law in Democratic Societies, Verfassungsblog
  4. Ernst Ulrich Petersmann, Self-Constitution of Mankind without Constitutional Constructivism?, EJIL:Talk!
  5. Crissy Stroop, A crisis of democracy in the US – what to watch for in 2022, Open Democracy
  6. Richard Clayton, ‘The Government’s New Proposals for the Human Rights Act; Part One – The Proposals in Outline’, UK Constitutional Law Association
  7. Karolina Szopa, ‘Condemning the Persecuted: Nationality and Borders Bill (2021) and Its Compatibility with International Law’, UK Constitutional Law Association
  8. Colin Yeo, Free Movement review of the year 2021, Free Movement
  9. Jacob van de Kerkhof, Biancardi v Italy – A Broader Right to be Forgotten, Strasbourg Observers
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Published on January 10, 2022
Author:          Filed under: Developments
 

Constitutional Review 3.0 in Taiwan: A Very Short Introduction of Taiwan’s New Constitutional Court Procedure Act

Ming-Sung Kuo, Associate Professor of Law, University of Warwick and Hui-Wen Chen, Research Assistant, University of Warwick

January 4, 2022 is a landmark date for constitutional review in Taiwan. It marks the coming into effect of the new Constitutional Court Procedure Act (CCPA), which was gazetted on January 4, 2019. With the CCPA’s taking effect, Taiwan’s constitutional review and the Justices of the Judicial Yuan – the constitutionally designated body in charge of, inter alia, constitutional interpretation, known as the Taiwan Constitutional Court (TCC) – are entering a new era. To prefigure the coming of this new age of constitutional review in Taiwan, the TCC even announced on December 15, 2021 that an oral hearing would be held on January 17, 2022 – of course in accordance with the new CCPA.

In this contribution, we shine light on the core features of the new CCPA in anticipation of its impact on the relationship between the people and the constitution in Taiwan. To appreciate the procedural changes introduced by CCPA, we first situate this landmark reform on constitutional review in the TCC’s winding path towards Taiwan’s constitutional guardian.   

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Published on January 7, 2022
Author:          Filed under: Developments
 

American Exceptionalism and the Capitol Riot One Year Later

Miguel Schor, Drake University School of Law

American exceptionalism is a term of art comparativists employ to write and think about the United States. Two remarkable phenomena underpin the claim of American exceptionalism. First, the United States self-consciously envisioned itself as setting an example to the world when it drafted a new constitution in the late eighteenth century. Reason rather than history, or so the framers believed, would henceforth become the benchmark for constitutions. The Constitution, as well as the revolution that gave it birth, occasioned a vast literature that informs the nation’s identity. That sense of a shared identity is unraveling as Americans begin to reckon with the legacies of slavery and the degradation of their democracy. Second, although no wealthy, long-standing democracy has ever suffered a democratic breakdown, the United States came surprisingly close to one with the Capitol riot on January 6, 2021. A considerable body of literature, less adulatory than that celebrating the founding of the republic, explores Trumpism. The flaw in that literature is that it largely fails to connect how our exceptional constitution facilitated the political construction of our dysfunctional democracy. The American experiment in self-government had much to teach the world about democratic emergence at its inception. Today, it offers important lessons on democratic erosion.

The Capitol riot laid bare how unexceptional and ordinary American democracy has become. In ordinary democracies devotion to leaders engulfs institutions. The devotion shown to Donald Trump by the Capitol rioters and by his voters who believe that the 2020 election was fraudulent presents a profound challenge to the claim made by John Marshall in Marbury v. Madison (1803) that we are a “government of laws, and not of men.” In an ordinary democracy, plebiscitary leaders rely on lies and emergencies to inflame and divide the public. They are prone to experiencing autogolpes such as the Capitol riot since elected leaders use their office to enrich themselves and their cronies and seek to overturn elections as well as terms limits to avoid accountability.

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Published on January 6, 2022
Author:          Filed under: Analysis