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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

The Chilean Constituent Process: A Long and Winding Road

Alberto Coddou Mc Manus, Diego Portales University & University College of London

Nowadays, Chile is undergoing a unique constituent process. A longstanding aim of several social movements, the idea of a new constitution now dominates the agenda, and is one of the main commitments of the current government. The commitment to replace the Constitution of 1980 stems partly, but not exclusively, from its origin in dictatorship. In an era where structural reforms have been at the forefront of centre-left governments around the region, various constraints put in place by the 1980 constitution have assumed a central place in the Chilean political public sphere. It seems that Chileans have to discuss, design and implement every policy under the shadow of Pinochet’s constitution, which was carefully crafted to preclude the institutional articulation of progressive political projects. Several critiques against the current constitutional arrangements have emerged: the powers of the Constitutional Court, which has emerged as a threat to strike down major reform packages; super-majoritarian laws that regulate fundamental issues (like education, local government, or the organization of the armed forces), which were mostly enacted during the dictatorship and to which any reform can be blocked by a congressional minority of 3/7ths; and, echoing a problem that is widespread in the region, a hyper-presidentialism that relegates Congress to a secondary role.

In this scenario, and under the pressure of social movements that during the last presidential election called on people to mark their ballots in order to support a Constituent Assembly, President Bachelet committed her political forces to launch a constitutional process that would comply with three standards: respect for the current institutional arrangements, in order to motivate the participation of sceptical sectors of the political establishment; active participation of the citizenry, that for the first time in the Chilean history has been invited to be the main actor of this process; and inclusiveness, which implies being aware of different groups that have been historically and structurally excluded from political debates. What was drafted in general terms in her political manifesto is now being implemented, and the precise articulation and design of the constituent process is something that may attract the interest of broader regional or global audiences. Three features of the current constituent process should be highlighted.

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Published on May 4, 2016
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

–Rohan Alva, Advocate, New Delhi

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

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

Developments in Constitutional Courts

  1. The Constitutional Court of Colombia declared that same-sex marriages are deserving of constitutional protection.
  2. Venezuela’s Supreme Tribunal of Justice rejected the political opposition’s efforts to reduce the term of Venezuelan President Nicolas Maduro.
  3. The Supreme Court of India expressed dismay over enormous sums of money given out as loans by banking institutions remaining unpaid and suggested that the Indian government take immediate steps to recover the monies.
  4. The U.S.Supreme Court refused to block the state of Texas from enforcing its controversial voter identification law.
  5. The Japanese Supreme Court issued an apology for having permitted subordinate courts to conduct trials of persons afflicted with leprosy in places other than the courtrooms.
  6. The Supreme Court of India invited the views of the Attorney General on Congress MP Jairam Ramesh’s petition challenging introduction of the Aadhaar bill in Parliament as a “money bill” accusing the BJP-led NDA government of committing a “Constitutional fraud.”

In the News

  1. At a conference of chief justices and chief ministers of the different Indian states, it was resolved that retired judges of the high courts should be appointed for a limited term as justices in the high courts, so as to reduce the pendency of cases.
  2. In China, under new legislation, law enforcement agencies have been conferred with wide powers to investigate the functioning of foreign non-governmental organisations.
  3. In the United States, Tennessee’s governor assented to a law that allows a counsellor or a therapist not to treat persons if the treatment would conflict with the practitioner’s “sincerely held principles.”
  4. The Austrian government has been conferred with wide powers to disallow asylum seekers from entering the country.
  5. Jordan’s lower house of Parliament passed constitutional amendments giving new powers to the King and allowing citizens with dual nationalities to occupy senior public posts and parliamentary seats.

New Scholarship

  1. Cormac S. Mac Amhlaigh, Pluralising Constitutional Pluralism, in In Pursuit of Pluralist Jurisprudence (N. Roughan and A. Halpin (eds.)) (forthcoming) (proposing that a plurality of models are needed to understand “interactions and conflicts between different legal orders” since the complexities of constitutional pluralism cannot be fully explained by a singular model)
  2. Dieter Grimm, Constitutionalism: Past, Present, and Future (2016) (exploring important issues in constitutional law such as the qualities a constitution must possess and constitutional interpretation)
  3. Aileen McHarg, Tom Mullen, Alan Page, and Neil Walker (eds.), The Scottish Independence Referendum (forthcoming 2016) (examining, from a cross-disciplinary perspective, the impact of the Scottish Referendum Process on UK constitutional law)
  4. Jonathan L. Marshfield, Improving Amendment, Arkansas Law Review (forthcoming) (suggesting that amendment politics in several U.S. states might be improved if amendment rules in those states were changed to require ratification of amendments by some majority of locally-elected governing bodies rather than at-large public referenda)
  5. Cass R. Sunstein, Antonin Scalia, Living Constitutionalist, Harvard Law Review (forthcoming) (examining opinions of Justice Scalia that suggest that he was an ardent believer of “living constitutionalism”)
  6. Norman P. Ho, Confucian Jurisprudence, Dworkin, and Hard Cases, Washington University Jurisprudence Review (forthcoming) (arguing that Confucian jurisprudence accurately can be analogized to Dworkin’s adjudicative theory of law, in particular, his interpretive theory of law)
  7. Dan Priel, Conceptions on Authority and the Anglo-American Common Law Divide, American Journal of Comparative Law (forthcoming) (seeking to explain the puzzle of the divergence of American law from the rest of the common law world through the lens of legal theory)

Announcements and Calls for Papers

  1. Abstracts of papers are invited for a conference on “Philosophical Foundations of Global Law,” which is being held at the University of Cartagena on August 24-27, 2016. Abstracts must be sent in by June 15, 2016.
  2. A symposium on “Regulating Innovation in Healthcare: Protecting the Public or Stifling Progress?” is being organised by the Nova Southeastern University Shepard Broad College of Law and the Nova Law Review on October 14, 2016. Interested participants are invited to submit abstracts of papers by May 15, 2016.
  3. The LSE Health & Social Care and the Department of Social Policy at the LSE have issued a call for papers for the “International Health Policy Conference 2017,” which will be held at the LSE on February 16-19, 2017. All abstracts must be sent in by October 1, 2016.
  4. The Faculty of Law, University of Trento, Italy, is organising a Summer School on the theme “Constitutional Legitimacy of Political Parties.” Applications for the Summer School should be submitted by May 12, 2016 (extended deadline).
  5. Professor Dominique Clément will deliver a public lecture on “Equality Deferred: Human Rights Law in Canada” on May 3, 2016. The lecture is organized by the New Zealand Centre for Human Rights Law, Policy and Practice.

Elsewhere Online

  1. Ian McPherson, New Zealand on the Verge of Implementing Pay Equity, Oxford Human Rights Hub
  2. Dwight Newman, Indigenous Rights, Canada’s National Energy Board, and the Supreme Court of Canada, JURIST
  3. Howard M. Wasserman, Improper motive can violate the First Amendment, even with a factual mistake, SCOTUS Blog
  4. John Pfaff, A Mockery of Justice for the Poor, New York Times
  5. Douglas McDonald, GJ and Others: The UK Upper Tribunal on Post-Civil War Returnees to Sri Lanka, Law and Other Things
  6. Renáta Uitz, Hungary’s attempt to manage threats of terror through a constitutional amendment, ConstitutionNet
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Published on May 2, 2016
Author:          Filed under: Developments, Uncategorized
 

The Brexiteers: Right Answer, Wrong Question

Nicholas Barber, Associate Professor of Constitutional Law, Oxford University

Towards the end of the 1990s I was invited to a workshop just outside of Berlin at which a group of young academics gathered to discuss the future of the European Union.  The workshop was funded by a German think-tank that had generously, if perhaps misguidedly, provided significant amounts of food and drink to assist the process of contemplation.  We had a great time, but by the end of the two days the future of the Union was, if anything, rather blurrier than it had been at the start.

One conversation I had at the workshop has stayed with me.  An earnest German doctoral student tackled me about Britain’s position on the Eurozone.  He wanted to know why Britain had decided not to join, and voiced a dark suspicion as to the answer. Was it true, he asked, that Britain planned to wait, see how the currency union functioned, and join only if it was a success?  I was able to answer this one.  He was quite correct; Britain would only join if we thought it was in our national interest to do so and, at present, we didn’t.   He seemed unhappy with this, and it was then we each realised that there was a profound divide between our understandings of the European project.  For him, Europe was an embryonic state: decisions about it should be made in the best interests of the people of Europe as a whole and – perhaps connectedly – in ways that buttressed and strengthened European Institutions.  For me, in contrast, Europe was a collection of sovereign states that had agreed to work together for mutual benefit.  Each state should make decisions in the best interests of its own citizens – and the European Union operated where these interests overlapped, or where the benefits of a compromise outweighed its costs.  My German friend thought I was cynical and scheming, whilst I thought he was misguided and naïve.  We were both too polite to express these thoughts.

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Published on April 29, 2016
Author:          Filed under: Analysis
 

Book Review: Bogdan Iancu on Bianca Selejan-Guțan’s “The Constitution of Romania: A Contextual Analysis”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Bogdan Iancu reviews Bianca Selejan-Guțan’s book on The Constitution of Romania: A Contextual Analysis.]

Contextualizing Romania’s Fragmented Constitutionalism

Bogdan Iancu, Associate Professor (Comparative Constitutional Law and Constitutional Theory), University of Bucharest, Faculty of Political Science

For a long time after the collapse of state socialism, the countries that had just emerged from under the Iron Curtain were collectively referred to by the conceptual proxy of ‘post-communism’. After twenty-years, with the benefit of hindsight, the multiplicity of discrete contextual factors (economic, historical, religious, etc.) bearing on each particular jurisdiction and distinguishing for instance the Czech Republic from Romania, Bulgaria from Croatia or Hungary from Poland are apparent. More nuanced and fine-tuned analytical approaches and methodological tools can now be considered.

In Romania, the dominant cultural discourse of modernization is still tributary to the framework theory, first advanced by local nineteenth-century modernizers, of “forms without substance”.[1]  Depending of where one stood in this resilient debate, the argument could either be that borrowing Western forms, including a constitution, would lead in time to genuine modernization (i.e., Westernization)  by drawing substance into the form or that the exercise was fated to be a sham and that such posturing could not conceal the lack of contextual substance behind the façade (the empty forms of those adopted foreign rules and institutions). Emblematic for the latter standpoint, Nicolae Iorga, the country’s eminent 20th century historian, described the 1866 Constitution (an adapted Romanian form of the Belgian Constitution of 1831) as “[a coat] made in fact by an excellent tailor,  but one accustomed to tailoring suits for different kinds of bodies…with almost no effect on our political life other than having brought in yet another hypocrisy”.[2]  An iconic figure of the 19th century, I. C. Brătianu, prime minister between 1876 and 1888, referred in the same vein to  the newly adopted court dress:

It was not enough that they translated French laws word for word into Romanian, now they had to dress after the French fashion too. This is how we see our judges and barristers, clad in borrowed cloaks that in  France might signify something, according to their traditions, but here, with us, only look ridiculous.[3]

Romania has adapted a Western-style constitution in 1866 and replaced it with another fundamental law in 1923 (in essence, a significantly amended version of its predecessor). This democratic tradition, imperfect and inchoate though it might have been, was abruptly terminated: the 1923 Constitution was suspended in 1938 and replaced with the royal dictatorship of Carol II, followed by a brief fascist regime (September 1940-February 1941), a pro-Axis military dictatorial rule by Marshall Ion Antonescu (during WWII), the Soviet-backed instauration of  the Republic (1947) and the perpetuation of a particularly brutal form of state socialism until 1989. A Constitution was adopted in 1991 and amended fragmentarily and rather haphazardly in 2003 (in view of NATO and EU accessions). The current constitution is in many respects the result of transitional contingencies and open-ended “bricolage”. Some institutions have been taken over fragmentarily from pre-WWII traditions (bicameralism is the best example), some were copied verbatim from various Western blueprints (the Ombudsman), some choices followed cultural path dependencies (semi-presidentialism, copied in truncated form from the French Fifth Republic), some have been adopted or overhauled at the behest of the EU Commission (the entrenched, extreme autonomy of the judicial system).

Due to these features, the country is an ideal case study for inquiries into the functioning of constitutional institutions and especially into the value of transplants to an unsettled contextual soil. Few authors are better equipped for such an undertaking than Bianca Selejan-Guțan, a professor of human rights and public law at the University of Sibiu and one of the foremost Romanian constitutional scholars of her generation.

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Published on April 27, 2016
Author:          Filed under: Reviews
 

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

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

Developments in Constitutional Courts

  1. The First Senate of the German Constitutional Court decided that the authorization of the Federal Criminal Police Office to carry out covert surveillance measures in order to protect against threats from international terrorism is, in principle, compatible with fundamental rights under the German Basic Law.
  2. Russia’s Constitutional Court rejected as “non-executable” a European Court of Human Rights ruling that Russia must reform an absolute ban on voting rights for prisoners.
  3. Hungary’s Constitutional Court ruled that a provision of the electoral law that prohibits documented Hungarian residents who are abroad on the day of voting from submitting their vote via mail does not violate the right to vote.
  4. Georgia’s Constitutional Court ruled that legislation allowing government security agencies to have direct, unrestricted access to telecom operators’ networks to monitor communications is unconstitutional.
  5. Palestinian President Mahmoud Abbas established a constitutional court that analysts say concentrates more power in his hands and may allow him to sideline the Islamist group Hamas in the event of a succession struggle.

In the News

  1. Venezuela’s opposition-led parliament approved new referendum rules that speed up the process of requesting recall referendums.
  2. The Bulgarian National Assembly approved the second reading of amendments to the Electoral Code introducing mandatory voting.
  3. Congo’s President Denis Sassou Nguesso named former finance minister Clement Mouamba as prime minister, bringing a one-time opposition leader into the government.
  4. Campaigns will be prohibited in Thailand in the run-up to an August referendum on a new constitution that the military hopes will usher in stable politics but which critics say will stifle democracy.
  5. A warning by one of Italy’s most prominent judges over what he said were unprecedented levels of corruption among politicians has angered Matteo Renzi’s government and unleashed a political storm over the role of the judiciary.
  6. T.S. Thakur, India’s chief justice, requested that Prime Minister Narendra Modi double the number of judges to handle an “avalanche” of backlogged cases.

New Scholarship

  1. Emily S. Bremer, American and European Perspectives on Private Standards in Public Law, Tulane Law Review (forthcoming) (exploring the often-subtle differences in the private standardization systems and governmental standards policies in the U.S. and the EU)
  2. Bianca Selejan-Gutan, The Constitution of Romania: A Contextual Analysis (2016) (proving a contextual analysis of the Romanian constitutional system, with references to the country’s troubled constitutional history and to the way in which legal transplantation has been used)
  3. David Skarbek, Covenants without the Sword? Comparing Prison Self-Governance Globally, American Political Science Review (forthcoming) (developing a governance theory of prison social order with comparative analysis of Brazil, Bolivia, England, Scandinavia, and men’s and women’s prisons in California)
  4. Thomas Ugelvik, Prisons as Welfare Institutions? Punishment and the Nordic Model, in Handbook on Prisons (2016) (exploring the thesis that Nordic prisons and correctional systems are integrated parts of the strong, inclusive and ambitious Nordic welfare states that sets them apart from similar institutions and systems elsewhere)
  5. Richard W. Wright, Florence G’sell, Samuel Ferey, Introduction to Causation, Liability and Apportionment: Comparative Interdisciplinary Perspectives, 91 Chicago-Kent Law Review 445 (2016) (summarizing discussions of causation, liability and apportionment from philosophical, legal and economic perspectives by leading authors from various common and civil law jurisdictions)
  6. Daniel Quigley and Frederik Giancarlo Toscani, The Roles of Transparency in Regime Change: Striking When the Iron’s Gone Cold (2016) (addressing how freedom of information about an institution’s resilience affects its stability)
  7. Benjamin Alarie, The Path of the Law: Toward Legal Singularity (2016) (predicting that the coming decades will witness gradual transitions as “the legal singularity”—i.e., the culmination of the greater availability of data and improved methods of machine learning through advances in computer-assisted modelling and inference—draws nearer)
  8. Marina Aksenova, Solidarity as a Moral and Legal Basis for Crimes Against Humanity: A Durkheimean Perspective, iCourts Working Paper Series, No. 52 (2016) (invoking criminologically related work of Emile Durkheim to support the claim that moral legitimacy of crimes against humanity as a group of offences flows from the feelings collectively shared by individuals across state borders)
  9. Charles James Dunlap Jr., Accountability and Autonomous Weapons: Much Ado About Nothing?, Temple International & Comparative Law Journal (forthcoming) (maintaining that although no one can guarantee accountability for autonomous weapons systems, it is better to develop norms to control these systems than to attempt to ban them outright)

Calls for Papers and Announcements

  1. Judge Guido Calabresi will be interviewed by Federico Fabbrini, inaugurating iCourts’ HiCourts Judges’ Dialogues Series. The interview will take place in Auditorium 1, University of Copenhagen, Main Building, Frue Plads 4, DK-1168 Copenhagen K from 15:30-17:00 on May 3, 2016. Registration is available here.
  2. City University London will host the inaugural event of the Global Law, Justice and Regulation Series on April 25, 2016 from 6:00–7:30 pm in Room A130 College Building St John Street London EC1V 4PB. This inaugural dialogue focuses upon the relationship between global law and transnational law.
  3. The School of Law at the University of Portsmouth, the European University Institute (EUI) and the School of Law and Social Justice, University of Liverpool are organizing a two-day conference on “Building Consensus on European Consensus” to be hosted by the EUI in Florence on June 1-2, 2016.
  4. The Venice Academy of Human Rights will host a program on “Backlash against Human Rights?” on July 4-13, 2016 at the Monastery of San Nicolò, Venice – Lido, Italy. The application deadline is May 29, 2016.
  5. The Transnational Law and Justice Network will hold a workshop, “Contextualizing Social Justice in Transnational and International Law,” on August 8, 2016, at University of Windsor, Canada. The submission deadline for applications and abstracts is May 6, 2016.

Elsewhere Online

  1. Arne Cools, Cédric Labens, Liselotte Leenaerts, Manon Moerman, Jurgen Goossens, and Pieter Cannoot, Ideological balance in US Supreme Court and Belgian Constitutional Court, BelConLawBlog
  2. Zaid Al-Ali and Helen Lackner, Will Yemen’s latest round of negotiations reflect learning from past failures?, The Washington Post
  3. Satang Nabaneh, Suppressing dissent: The Gambian reality, AfricLaw
  4. Solomon Sogbandi, Healing the wounds of the civil war: The constitutional review process in Sierra Leone, ConstitutionNet
  5. Emily Michiko Morris and YiYang Jiang, The War Over Video Game Warriors, Comparative Law Prof Blog
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Published on April 25, 2016
Author:          Filed under: Developments
 

Abusive Impeachment? Brazilian Political Turmoil and the Judicialization of Mega-Politics

Juliano Zaiden Benvindo, University of Brasília

In 2007, Aníbal Pérez-Liñán, an Argentinian professor of political science at the University of Pittsburgh, wrote that “impeachments are likely when the mass media systematically investigate and expose political scandals and when the president fails to keep tight control over Congress… When a broad social coalition takes the street to demand the resignation of the president, the fall of the administration is usually in sight.”[1] As a mechanism capable of ousting a president from office, impeachment proceedings have indeed become a trend in Latin America, and they can be normally associated with distinct and in many cases combined variables: 1) minority support in Congress; 2) scandals of corruption; 3) influential and concentrated media coverage of those scandals; 4) economic mismanagement; 5) a president’s low approval ratings; and 6) popular protests. Brazil (1992), Venezuela (1993), Colombia (1996), Ecuador (1997, 2004), Paraguay (1999, 2002, 2012), and Peru (2000) are just some examples of this new pattern. Now it is Brazil that is going through such a moment. But, perhaps more than the other examples, the Brazilian case may reveal an interesting way in which the “judicialization of mega-politics”[2] can intersect with a new form of “abusive constitutionalism.”[3]

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Published on April 23, 2016
Author:          Filed under: Developments
 

The Democratic Recession and the “New” Public Law: Toward Systematic Analysis

Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law

2016 thus far has been marked by democratic backsliding and constitutional crises worldwide: European Commission ‘rule of law’ investigations into Polish laws on the Constitutional Tribunal and media;[1] Turkish President Erdoğan’s insistence that he will not comply with decisions of the Constitutional Court or the European Court of Human Rights,[2] combined with accelerated plans for a problematic new constitution;[3] talk of an ‘implosion’ of South Africa’s democratic institutions;[4] a disturbing crackdown on dissent in India;[5] pro-democracy rallies in Brazil against a perceived political coup d’état through impeachment of President Rousseff;[6] and warnings that democracy in the Maldives is on a ‘negative trajectory’.[7]

These crises form just part of a global ‘democratic recession’[8]  that has appeared to gather pace in the past decade, from Hungary and Romania, to Venezuela and Botswana. This blog post seeks to present a brief initial mapping of the current state of thinking and institutional development in this area, and to make the case that systematic analysis is sorely needed if we are to make sense of this democratic recession, its impact on the evolution of public law, and the adequacy of the public law response to democratic backsliding.

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Published on April 22, 2016
Author:          Filed under: Analysis
 

International IDEA Report on Transition in Yemen

Richard Albert, Boston College Law School

Readers of I-CONnect will be interested in the following update we have received from Zaid Al-Ali, Senior Adviser on Constitution-Building for the Arab Region at International IDEA.

I am very pleased to share our latest report on Yemen, entitled: “Yemen’s peaceful transition from autocracy: Could it have succeeded?”. The report was written by Helen Lackner, one of the leading experts on Yemen, and was published by International IDEA last week. It is available for free download here.

The report examines all aspects of Yemen’s transition, including the Gulf Cooperation Council Initiative and its Implementation Mechanism, the restructuring of the military–security apparatus, the National Dialogue Conference and the constitution-drafting process (in which a number of internationals participated, including Christina Murray, George Anderson, myself, and many others).  The report also discusses a number of related issues such as the discussions that revolved around transitional justice. The report concludes that while Yemen suffers from a number of underlying social and economic factors that will remain crucial to its development, many of the contributors to the current conflict were linked to the original design of the transition plan. In addition, the manner in which the transition was implemented by specific individuals, institutions and states reduced its chances of success. The report concludes with a series of recommendations for future reform efforts, both in Yemen and beyond.

Zaid Al-Ali

We invite readers to review this important report here.

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Published on April 19, 2016
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

–Sandeep Suresh, Research Associate, Daksh India (Rule of Law Project)

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

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

Developments in Constitutional Courts

  1. The Indian Supreme Court observed that the ban on entry of women into temples cannot be justified on the basis of traditions that violate constitutional principles.
  2. The High Court in Kuala Lampur held that Malaysia’s Sedition Act of 1948 is constitutional.
  3. The Indian Supreme Court held that it is not possible to categorise the persons who will have locus standi to file a special leave to appeal under Article 136 of the Indian Constitution.
  4. The U.S. Supreme Court will hear arguments in a challenge to President Barack Obama’s executive action to defer deportation of certain immigrant children and parents who are in the country illegally.
  5. Venezuela’s Supreme Court declared an amnesty law for jailed opposition leaders unconstitutional.

In the News

  1. The President of India warned the judiciary not to dilute the doctrine of separation of powers by resorting to judicial activism.
  2. The Kenyan National Gay and Lesbian Human Rights Commission challenged the nation’s anti-gay law before the High Court.
  3. Palestine established a new Constitutional Court to act as the nation’s top court.
  4. The Indian Supreme Court decided to sit for hearings on Saturdays for the first time.
  5. The Prime Minister of Japan asserted that his country can legally possess nuclear weapons even though the Constitution prohibits the country from maintaining a military.

New Scholarship

  1. Nicola Lupo and Cristina Fasone (eds.), Interparliamentary Cooperation in the Composite European Constitution (2016) (discussing developments in interparliamentary cooperation and its implications for the organisation and procedures of national parliaments and the European Parliament, for the fragmented executive of the EU, and for the democratic legitimacy of the overall EU composite Constitution).
  2. David Kosař and Lucas Lixinski, Domestic Judicial Design by International Human Rights Courts, 109 The American Journal of International Law 713-760 (2015) (explaining how the European and Inter-American Human Rights courts have increasingly moved beyond their original mandates and have made determinations about the design of national courts).
  3. Martijn Van den Brink, The Origins and the Potential Federalising Effects of the Substance of Rights Test, in Dimitry Kochenov, EU Citizenship and Federalism: The Role of Rights (forthcoming 2016) (examining the potential ability of the substance of rights test introduced by the European Court of Justice to change the federal balance of competences within the EU, but also questioning whether it would be desirable to use this test in such a far-reaching manner).
  4. Jaclyn L Neo, Equal Protection and the Reasonable Classification Test in Singapore: After Lim Meng Suang v. Attorney-General, Singapore Journal of Legal Studies (2016) (arguing that there are at least three areas regarding the equality clause that need further judicial elucidation and that the reasonable classification test as it now stands is sufficiently capacious for the courts to read substantive content into the equality provision should a suitable case arise in the future).
  5. Xiaodan Zhang, The Modification of the Legislation Law of the People’s Republic of China and the new “Normality” of the Legislation in China, VRU – Law and Politics in Africa, Asia and Latin America (2015) (analysing the amendment to thelegislation law of the Republic of China and the possible influences of the reforms on law-making in China and rule of law).
  6. András Jakab,European Constitutional Language (2016) (mapping out and analysing the grammar and vocabulary on which the core European traditions of constitutional theory are based).
  7. Mesenbet Assefa Tadeg, Freedom of Expression and the Media Landscape in Ethiopia: Contemporary Challenges, Journal of Media Law and Ethics (forthcoming) (analysing the current state of media freedom in Ethiopia, in particular the normative problems related to the regulation of freedom of expression and the media in light of both the general theory of freedom of expression and international human rights law).
  8. Franziska Maria Oehm, Land Grabbing in Cambodia as a Crime Against Humanity – Approaches in International Criminal Law, VRU – Law and Politics in Africa, Asia and Latin America (2015) (questioning whether land grabbing might be qualified as an international crime against humanity and whether international criminal law is a proper protection mechanism in cases where domestic legal proceedings are unable to prosecute alleged perpetrator).

Calls for Papers and Announcements

  1. The Transnational Law and Justice Network at the University of Windsor, Canada is hosting a Workshop on “Contextualizing Social Justice in International and Transnational Law” on August 8, 2016. Interested scholars are required to submit their abstracts (300 words) and a short biography by May 6, 2016 to socialjusticeTLJN@uwindsor.ca.
  2. The Africa Journal of Comparative Constitutional Law is inviting submissions for its inaugural Issue in November, 2016. The deadline for sending submissions is May 31, 2016.
  3. The Vienna Journal on International Constitutional Law is inviting abstracts for a one day Conference on September 23, 2016 that will focus on “International Constitutional Law.” Abstracts (300 words) and CV of participants must be submitted to fegerl@wu.ac.at by May 15, 2016.
  4. The Tel Aviv University Buchmann Faculty of Law is inviting submissions for its 4th Annual Workshop for Junior Scholars in Law with the theme “Law in a Changing Society” on November 21-23, 2016. Interested participants must submit abstracts of their papers (700 words) with a short biography to junior.scholars@gmail.com by May 16, 2016.
  5. Abstracts are invited for the 2nd Business and Human Rights Scholars Conference to be held on September 16-17, 2016 at the University of Washington School of Law, Seattle. Interested authors must submit their abstracts (250 words) to bhrconference@kinoy.rutgers.edu by May 15, 2016.

Elsewhere Online

  1. Graham John Wheeler, The British Overseas Territories and “Direct Rule”, UK Constitutional Law Blog
  2. Michael Gyan Nyarko, Ghana’s Human Rights Court gives life to the right to information, AfricLaw
  3. R N Bhaskar, The Supreme Court and Religion in India: A blinkered perspective?, Firstpost India
  4. Editorial Board, A Challenge to Poland’s Anti-Democratic Drift, New York Times
  5. SC Yeung, Why the idea of having two HK chief executives is being floated, Ejinsight
  6. Tony Blackshield, Death of a Ghost; or, SCOTUS Sans Scalia, Occasional Pieces – Gilbert + Tobin Centre of Public Law
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Published on April 18, 2016
Author:          Filed under: Developments
 

Varieties of Constitutionalism (I·CON 14, Issue 1: Editorial)

Mark Tushnet, Harvard Law School

Political scientist Diana Kapiszewski has begun a study of the rise of what she calls “adjectival constitutionalism,” the study of constitutionalisms identified by some modifier. That there are varieties of constitutionalism seems undeniable. Outlining a preliminary taxonomy may be useful to scholars in the field, in helping us organize our thinking—and perhaps in provoking us to think about constitutionalism as such, and what our field of study encompasses. My own goal in this enterprise is somewhat disruptive. By offering a taxonomy of constitutionalisms, I hope to unsettle the view that liberal constitutionalism simply is constitutionalism, and that all other varieties are defective. Not only do other constitutionalisms exist, I believe, but some of them are as normatively defensible, under appropriate circumstances, as liberal constitutionalism is (under appropriate circumstances as well).

Simple examples of adjectival constitutionalism are studies of regional constitutionalism: Latin American constitutionalism, East Asian constitutionalism, and the like. Some of the reasons for the existence of such studies lie in organizational characteristics of the field. Simply put, it is relatively easy to gather (and find funding for) a conference of specialist scholars of nations within a region: They can meet in some convenient location, and they are likely to work in the same or related languages, for example. Yet, precisely what constitutions within a region have in common—why they should be grouped under a single adjective—is open to question. That we can observe commonalities seems unquestionable, but the primary explanation for them may be the mundane process of diffusion of ideas and institutions. Studies of policy diffusion lead to the conclusion (slightly overstated here for effect) that the best predictor of whether a specific nation has some distinct institution is whether its closest neighbor has the same institution. When we observe regional commonalities, then, we may learn something about the general processes of policy diffusion, but not about the region itself.

Yet, there may be something to the idea of regional constitutionalism. At this point in our understanding, for example, it may be reasonable to posit that constitutions within a region are shaped by the existence of a regional hegemon if there is one: the United States for Latin America, India for South Asia, China for East Asia. The “shaping” can take the form of influence, as in the prevalence of presidentialism in Latin America and the diffusion of the “basic structure” doctrine in South Asia, or aversion, to use Kim Lane Scheppele’s term, as may be the case in East Asia and to some extent in Latin America and its constitutions’ recent ambivalence about neo-liberalism and neo-colonialism.

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Published on April 14, 2016
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