Blog of the International Journal of Constitutional Law

Developments in Slovak Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Slovak constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Tomáš Ľalík, Associate Professor, Comenius University, Kamil Baraník, Assistant Professor, Comenius University, Šimon Drugda, LLM Candidate, Nagoya University

I. The Constitution and the Court

Slovakia became independent in 1993, with the peaceful dissolution of the Czech and Slovak Federal Republic. Its Constitution, adopted already in 1992, fashioned a parliamentary model of government and constitutional supremacy. It divides the state powers between the National Council (NC), a unicameral legislature composed of 150 MPs; the government; the presidency; and the judiciary.

An amendment to the Constitution in 1999 introduced direct election of the president to the initial design. However, it is the government that wields most executive powers and bears the responsibility for their exercise to the NC. The Constitutional Court of the Slovak Republic (CC) is the principal guardian of the Constitution (Art 124). A special body, the Court is separate from the general judiciary.

The Constitution can be amended by a qualified majority of 90 MPs, whereby the NC turns into the constitution-maker.[1] The Constitution has already been changed 16 times since its adoption, with the last direct amendment adopted on March 30, 2017.[2] Most of the amendments were fairly inconsequential, but a few managed to stir the institutional equilibrium: the introduction of the popular presidential election (1999); a major pre-EU constitutional overhaul in 2001;[3] establishment of the Judicial Council to enhance the independence of the judiciary (2001); or the introduction of Ombudsman. These changes had important knock-on effects that still resonate within the fabric of Slovak constitutional law. The practice of constitutional government was not yet “liquidated” at the end of the millennium,[4] and relationships especially within the executive, between the directly elected president and government of the time, proved to be problematic. The CC oft needed to guard and interpret the Constitution in conflicts, as well as mediate between the political branches at the same time.

The CC was established to serve as the last check in constitutional disputes. It wields powers to 21 different types of proceedings (the newest one is to review executive pardons; March 2017 amendment). The Court hears cases in the plenary sessions, or in one of its four three-member Senates. The most prominent of the Court’s powers is an abstract constitutional review. The Court acts as the Kelsenian negative legislator (Art 125) to review parliamentary legislation against the Constitution and its material principles. Second, the CC is the ultimate interpreter of the Constitution in interpretive disputes (Art 128), thereby, perhaps, acting as the “junior” partner of the constitution-maker.[5] Both constitutional interpretation and review are vested in the Plenum and enjoy generally binding effect (erga omnes). The Senates conduct the concrete review in cases of alleged violation of individuals’ constitutional rights (Art 127).

The CC normally seats 13 judges, appointed for non-renewable 12-year terms (Art 134). The NC nominates a double number of candidates for each vacancy on the Court by a simple majority, and the president then selects and appoints one of the two nominees. But even this relatively straightforward process became a source of serious tension between the NC and president.[6] The ongoing conflict (see the 2015 YiR report) has left the Court incomplete for well over two years.

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Published on December 15, 2017
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Five Questions with Mila Versteeg

Richard Albert, Boston College Law School

In our recurring I-CONnect feature on “Five Questions,” we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features Mila Versteeg, Class of 1941 Research Professor of Law and Director of the Human Rights Program at the University of Virginia. Her bio follows below:

Mila Versteeg joined the Law School in 2011. Her research and teaching interests include comparative constitutional law, public international law and empirical legal studies. Most of her research deals with the origins, evolution and effectiveness of provisions in the world’s constitutions. Her publications have, amongst others, appeared in the California Law Review, the New York University Law Review, the University of Chicago Law Review, the American Political Science Review, the American Journal of Political Science, the Journal of Legal Studies, the American Journal of International Law, and the Journal of Law, Economics and Organizations. A number of her works have been translated into Chinese, Portuguese and Turkish.

In 2017, Versteeg was named an Andrew Carnegie Fellow, which provided her with a $200,000 award to expand her research into the world’s constitutions to better understand how constitutional rights are enforced in different countries.

Versteeg earned her B.A. in public administration and first law degree from Tilburg University in the Netherlands in 2006. She earned her LL.M. from Harvard Law School in 2007 and a D.Phil. in socio-legal studies in 2011 from Oxford University, where she was a Gregory Kulkes Scholar at Balliol College and recipient of an Arts and the Humanities Research Council Award.

Prior to joining the Law School, Versteeg was an Olin Fellow and lecturer in law at the University of Chicago Law School. Versteeg previously worked at the U.N. Interregional Crime and Justice Research Institute in Turin and at the Southern Africa Litigation Centre in Johannesburg. While at UVA, Versteeg has been a visiting associate professor at the University of Chicago Law School (fall 2013) and Columbia Law School (spring 2016), and a visiting professor at the law schools of Hebrew University, the University of Hamburg (summer 2015) and Tel Aviv University (spring 2017).

1. Tell us about something you are working on right now.

My main project right now is a book manuscript that explores whether and how constitutional rights constrain government behavior. Together with Adam Chilton, I explored this question using statistical methods in two papers which we published in social science journals. The book further explores the mechanisms through which rights make a difference and adds a series of country case studies. I received a Carnegie Fellowship to do this research and I spent most of the fall conducting interviews.

In addition, I am working on a number of smaller projects and a new comparative constitutional law textbook that attempts to be more global and interdisciplinary in its outlook than existing textbooks (forthcoming with OUP and co-authored with Tom Ginsburg, Ozan Varol, David Landau, and Will Partlett).

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I write pretty much everywhere but in my office. My house has a little river running next to it, and I love to write there in the company of my dog, Lukkie. I also love to write in coffee shops and on the road: in trains, planes, and hotel lobbies. Wherever I feel inspired, really! When I am in a foreign city, I always make a point of spending the afternoon working in a local coffee shop. (In fact, I am answering these five questions in a coffee shop in Tel Aviv!)

During busy weeks, when the semester is in full swing and there are many demands on my time, I try to stay productive by blocking a few hours in the morning for writing. During these hours, I’ll ignore everything else, which occasionally produces small disasters but which usually allows me to continue to write also during busy parts of the semester.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

I try to keep a close eye on everything that is happening in the field. Among others, I’ll make sure to read the latest pieces by Ros Dixon, Tom Ginsburg, Ran Hirschl, David Landau, Ozan Varol, David Law, and many others! I further follow the work by empirical political scientists such as Yon Lupu, Katerina Linos, and Beth Simmons.

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

There are many. A starting assumption in much of my research is that people respond to incentives, and that constitutions do not enforce themselves. In that sense, I see myself as working in the intellectual tradition of Russell Hardin (and his work on constitutions as coordination devices), Douglass North, and Barry Weingast (credible commitments and focal points).  I think that the research in this tradition has influenced my work more than anything else.

5. What are some of the big questions ripe for inquiry in your area of research interest?

At this time, the question of whether or how constitutions constrain those in power is maybe more important than ever. As nationalist-populist sentiments appear to be on the rise globally, I believe it is important to study whether and how constitutional constraints can protect us from the excesses of unconstrained democracy. Recent events in Turkey, Hungary, and Poland, among others, remind us that limited government is a fragile institution.

I think that the well-known metaphor of constitutions as “ropes that tie us to the mast to resist the singing of the sirens” (as per Homer’s story of Ulysses and the sirens) is not that helpful. At best, constitutional constraints can act as “speed bumps,” impeding those looking to free themselves from constitutional constraints. For example, we know that Turkish President Erdogan managed to largely dismantle his country’s constitutional constraints over the course of 15 years. (Earlier this year I gave a lecture in Turkey, where I saw this first-hand.) One of the most important questions for our field now, I believe, is whether, how, and why constitutions slow down those who want to abuse power.

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Published on December 15, 2017
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Call for Papers and Panels–Identity, Security, Democracy: Challenges for Public Law–ICON-S 2018 Annual Conference–Hong Kong, June 25-27, 2018

The International Society of Public Law (ICON-S) is pleased to announce that its 2018 Annual Conference will be held in Hong Kong on June 25-27, 2018, under the auspices of the University of Hong Kong’s Faculty of Law and its Centre for Comparative and Public Law – one of Asia’s foremost centres for the study of public law in all its varieties. This will be the fifth Annual Conference of ICON-S, following the four Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017) which have been overwhelmingly successful, thanks to the support of our Members.

ICON-S now invites paper and panel submissions for the 2018 Annual Conference. The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.”

Modern identity struggles and the search for constitutional and legal mechanisms that can accommodate diversity occur at many levels including the national, supra-national, local, individual, and collective; and also involve multiple dimensions: ethnic, racial, religious, gender, sexual, and cultural, to name but a few. In recent years, identity claims and security issues have taken centre stage in law and politics, prompting realignment of domestic, regional and international orders. Technological advancement has to some extent countered traditional security concerns, but has given rise to new ones as well as to issues of privacy and political control. At the same time, democracy, a widely revered political ideal for addressing differences and realising human aspirations, is facing challenges in many parts of the world. How should public law respond to these changing circumstances? Asia – with some of the most diverse cultures in the world, where domestic and regional security threats and human rights violations loom large, and where democracy is a relatively recent and at times fragile phenomenon or still under experimentation – offers a unique setting for fresh thinking on these and other closely-related themes.

The Conference will include a keynote address by The Rt Hon the Lord Neuberger of Abbotsbury, former President of the Supreme Court of the UK (2012-2017), as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON-S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. In any case, paper and panel proposals need not be limited to those themes, and may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic or approach for their papers or panels.

ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the study of identity, security, democracy and public law. We welcome submissions from both senior and junior scholars (including advanced doctoral students) as well as interested practitioners.

All submissions must be made through the ICON-S website (here) by January 31, 2018. Successful applicants will be notified by March 1, 2018.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON-S Hong Kong 2018!

Gráinne de Búrca (NYU) & Ran Hirschl (University of Toronto)
Co-Presidents of ICON-S

Richard Albert (Boston College); Lorenzo Casini (IMT School for Advanced Studies, Lucca); Cora Chan (HKU); Albert Chen (HKU); Rosalind Dixon (University of New South Wales); Kelley Loper (HKU); Joseph Weiler (NYU); Simon Young (HKU)
Members of the ICON-S 2018 Organizing Committee

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Published on December 14, 2017
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Developments in Irish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Irish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

Dr. Eoin Carolan, Associate Professor, University College Dublin

I. Introduction

2016 was very much a year of transition in Irish constitutional law. The year saw several significant developments, each of which raises important questions for constitutional politics in Ireland which remained undetermined at the start of 2017.

The question of whether the constitutional regime on abortion ought to be amended moved further up the political and constitutional agenda with the establishment of a citizen’s assembly chaired by a Supreme Court judge to consider the issue. Criticised by many as an attempt to delay or avoid the making of hard political choices, the assembly is due to make its recommendations in 2017.

The background tension between the judiciary and the government that has been evident for a number of years came to the fore with a public dispute over potential changes to the judicial appointments system. Dissatisfaction on the part of the judges (and many commentators) about the content of the proposals was exacerbated by concerns over the manner and tone of their presentation – a position not helped by the arrival into government of a new “independent” minister who, in his previous existence as a newspaper columnist, had consistently criticised the system as one based on cronyism and political patronage.

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Published on December 14, 2017
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In Wake of Controversial Enactment Process of Trump’s Tax Bill, Israeli SC Offers a Novel Approach to Regulating Omnibus Legislation

Ittai Bar-Siman-Tov, Assistant Professor, Bar Ilan University Faculty of Law

A controversial tax reform is enacted in the middle of the night. It is enacted in a massive hundreds-of-pages omnibus bill, which is rammed through the legislative process in a highly accelerated pace. The legislators receive the final version of the bill in the very last minute, and protest that they have no opportunity to read the bill and know what they are voting upon. The majority’s legislative leaders, however, are unimpressed, and the law is eventually passed on strict party discipline.

To most readers, especially fans of this viral video, this description surely sounds like the recent legislative process of Donald Trump’s Tax Bill in the US Senate. Israeli readers, however, will recognize the very same description as depicting the enactment of Third Apartment Tax in the Israeli Parliament.

The great similarities between these two cases demonstrate that laments about a broken legislative process, so often focused on the US Congress and its Republican majority, are in fact present in many jurisdictions around the world.

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Published on December 13, 2017
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Conference Report: Constitutions, Human Rights & Economic Inequality

–Matthew Coe and Zoe Graus, University of New South Wales, Grand Challenge on Inequality

What is the relationship among constitutions, human rights and economic inequality? How strong is this relationship in light of the fact that all liberal democratic constitutions guarantee equality? And what constitutional changes can be made to decrease violations of human rights and redistribute wealth to ease inequality? On August 10 and 11 a conference of over 20 academics from Israel, Germany, the United States, Canada, Australia and the World Bank, hosted by UNSW Law School, the Gilbert + Tobin Centre of Public Law, the Australian Human Rights Centre and the UNSW Grand Challenge on Inequality met to discuss these issues. A total of 12 papers were discussed. The event also included the launch of a book entitled The Crisis of the Middle Class Constitution by Ganesh Sitaraman, and the 2017 AHRCentre Annual Lecture with guest speaker Professor Philip Alston, UN Special Rapporteur on extreme poverty and human rights. There was a theme of skepticism as to whether constitutions are the appropriate, or an effective vehicle for change in this area. See a review of The Crisis of the Middle Class Constitution here.

The opening papers were by Professor Ran Hirschl and Rosalind Dixon (joint with Professor Julie Suk).

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Published on December 12, 2017
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Developments in Turkish Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Turkish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

–Serkan Köybaşı, Assistant Professor of Constitutional Law at Bahçeşehir University, Istanbul

I. Introduction

At the beginning of this century, Turkey was a candidate for becoming a member of the European Union. In the name of harmonization, in 2001 and 2004, many laws and some important parts of the 1982 Constitution, which was written and enacted after the military intervention, were amended, changed or annulled.[i] The AKP (Adalet ve Kalkınma Partisi – Justice and Development Party), a brand-new party which has emerged from the ashes of the Islamic-rooted RP (Refah Partisi – Welfare Party), took power between these two important amendments. They had, in the beginning, an agenda which pretended to combine on the one hand a modern, liberal Islam which is respectful of human rights and democracy. On the other hand, they followed an economic policy towards modernization and opening to the global economy. Under the charismatic leadership of Recep Tayyip Erdoğan, the party followed a “Muslim democratic” agenda similar to its Christian counterparts in Europe until 2008. But since then, this agenda’s “democratic” part has been gradually forgotten or ignored, and the AKP became a more centralized and authoritarian government. The Gezi uprising in May-June of 2013 against the authoritarian politics of the government; the judicial operations against some ministers and their sons for corruption allegations; which are described as a coup of the Fethullah Gülen Terror Organization (once an ally) by the AKP Government, in December of the same year; the temporary loss of power in the general elections of June 2015 and, as a result, the collapse of peace talks with the Kurds in 2015 strengthened governmental oppression in Turkey. 2016, especially after the failed coup attempt[ii] in July, was a year shaped by the extended power of the executive organs and the political split. Of course, the Constitutional Court of Turkey has also been affected by this extension and split.

The influence of the president on the Constitutional Court has always been a problem in Turkey. The Constitution of 1982, which created a more powerful presidency than in a normal parliamentarian system, accepted this organ as a trustable, independent, impartial and “supra-political” referee and gave the president the power to appoint, after some filtrations, all the constitutional judges. But the reality has not been in conformity with the theory and presidents’ choices have always been criticized for being politically motivated instead of being made according to judicial competences and merits. This critique is naturally valid also for the presidency of Erdoğan.

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Published on December 11, 2017
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What’s New in Public Law

–Simon Drugda, Centre for Socio-Legal Studies, University of Oxford (UK)

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

Developments in Constitutional Courts

  1. The Constitutional Court of Austria repealed legal provisions which distinguish between opposite-sex and same-sex couples. The repeal will take effect as of the end of December 31, 2018. Following the repeal, the institutions of marriage and registered partnership will be open to same-sex as well as opposite-sex couples.
  2. The Constitutional Court of South Africa is to decide on a “freedom fighter” defence under the Terrorism Act in the Okah cases, which deal with the issue of extra-territorial jurisdiction for terrorism and serious offences committed outside South Africa.
  3. The Constitutional Court of the Slovak Republic found that President Andrej Kiska violated rights of the candidates for judgeship when he refused to fill three outstanding vacancies on the Court.
  4. The Constitutional Court of Korea upheld a ban on cord blood sales.
  5. The US Supreme Court allowed enforcement of the Trump administration’s revised travel ban pending further court proceedings.
  6. The US Supreme Court ruled that the Trump administration does not have to turn over documents connected to its decision to end a program that protects immigrants brought to the United States as children from deportation (Deferred Action for Childhood Arrivals, abbrev. DACA).
  7. The US Supreme Court expanded its review of partisan gerrymandering, agreeing to consider arguments that a Maryland congressional district was unconstitutionally drawn to ensure the ouster of a Republican lawmaker.
  8. The Court of Justice of the European Union ruled that luxury brands can prohibit their distributors from selling products on third-party internet websites in the interest of maintaining their luxury image.
  9. The Constitutional Court of Moldova found a Law on the verification of holders and candidates for public offices by the Security and Intelligence Service unconstitutional, in parts concerning judges.

In the News

  1. The European Union is to make a submission to the US Supreme Court in its hearing of the US Department of Justice’s appeal against a ruling which prevented prosecutors from gaining access to emails held by Microsoft in Ireland.
  2. The European Commission is to refer the Czech Republic, Hungary and Poland to the Court of Justice of the EU for non-compliance with their legal obligations on relocation.
  3. A Spanish Supreme Court judge withdrew European arrest warrants seeking the deportation of Carles Puigdemont, the former President of Catalonia, and four former Catalan officials; but national warrants still stand.
  4. The High Court of South Africa ruled that President Jacob Zuma’s appointment of a State Prosecutor who would decide whether to reinstate corruption charges against him was invalid.
  5. Poland’s lower house of Parliament approved controversial reforms which critics say would increase the ruling party’s control over the judiciary.

New Scholarship

  1. Giovanni Boggero, Constitutional Principles of Local Self-Government in Europe (2017) (offering an account of the defining features of the European constitutional local government law using both international and comparative law perspectives)
  2. Mathieu Disant, Grégory Lewkowicz and Pauline Türk (eds.), Vers des standards constitutionnels mondiaux (2017) (examining the possibilities and challenges to the use of global standards in constitutional law)
  3. Nimer Sultany, Law and Revolution: Legitimacy and Constitutionalism After the Arab Spring (2017) (providing a novel and comprehensive examination of the constitutional order that preceded and followed the Arab Spring in Egypt, Tunisia, Libya, Morocco, Jordan, Algeria, Oman, and Bahrain)
  4. H. P. Lee and Marilyn Pittard (eds.) Asia-Pacific Judiciaries: Independence, Impartiality and Integrity (2017) (offering a contemporary analysis of the role and independence of judges in 15 countries)
  5. Kwai Hang Ng and Xin He, Embedded Courts: Judicial Decision-Making in China (2017) (examining the operation of Chinese courts based on extensive fieldwork and in-depth interviews)
  6. Rieko Kage, Who Judges? Designing Jury Systems in Japan, East Asia, and Europe (2017) (examining the introduction of jury/lay judge systems for criminal trials in Japan, South Korea, Spain, and perhaps soon Taiwan, to understand the difference of design in each jurisdiction)
  7. Andrew Arato, The Adventures of the Constituent Power: Beyond Revolutions? (2017) (exploring democratic methods by which political communities make their basic law and arguing that the most advanced method developed from Spain and South Africa)
  8. Constitutions, Religion and Politics in Asia: Indonesia, Malaysia and Sri Lanka (2017) (examining how religion influences constitutional commitments and development)
  9. Paul Blokker and Chris Thornhill (eds.), Sociological Constitutionalism (2017) (offering a systematic overview of the key scholarly contributions in an emerging field of research on the sociology of constitutions)

Calls for Papers and Announcements

  1. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites submissions for its Seventh Annual Conference, to be held on April 20-21, 2018, at Case Western Reserve University School of Law in Cleveland, Ohio. The deadline for abstracts is December 31, 2017.
  2. The University of Michigan Law School invites junior scholars to attend the 4th Annual Junior Scholars’ Conference, to be held on April 13-14, 2018, in Ann Arbor, Michigan. The deadline for abstracts is January 8, 2018.
  3. The Stanford Program in Law and Society (SPLS) at Stanford Law School invites submissions for its Fifth Conference for Junior Researchers on “Law in Everyday Life.” The deadline for abstracts is February 5, 2018.
  4. The Journal of the Oxford Centre for Socio-Legal Studies (JOxCSLS) invites submissions for its 2018 issue. The deadline for submission is February 18, 2018.
  5. The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, invites paper, poster and ‘soapbox’ proposals for its Second Postgraduate Conference in International Law and Human Rights, to be held on March 26-27, 2018. The deadline for submissions is January 12, 2018.
  6. The Annual Junior Faculty Forum for International Law invites applications for the seventh Forum, which will be held at the University of Melbourne on May 28-30, 2018. The deadline for submission of applications is December 15, 2017.
  7. The Nordic Journal of European Law (NJEL) invites submissions for its 2018 spring issue. The submission deadline is March 31, 2018.
  8. The EU Law Department of the University of Zagreb Faculty of Law invites submissions for the 16th Dubrovnik Seminar on the theme “Blame it on Brussels – EU Law and Distributive Effects of Globalisation.” The deadline for submission of paper proposals is January 31, 2018. Accepted candidates will be invited to publish their papers in the Croatian Yearbook of European Law & Policy.
  9. The Center for Interdisciplinary Research on Diversity and Democracy (CRIDAQ) at Université du Québec à Montréal invites applications for a postdoctoral fellowship for the 2018-2019 academic year. The fellowship must be used to carry out a project related to the CRIDAQ research themes in one of the four CRIDAQ antennae (UQAM, Université Laval, Université de Montréal, Concordia). The application deadline is January 15, 2018.
  10. The Institute for Advanced Legal Studies, University of London, invites submissions for papers to be presented at the WG Hart Legal Workshop 2018 on the theme “Building a 21st Century Bill of Rights,” to be held on June 11-12, 2018. The deadline for abstracts is April 30, 2018.

Elsewhere Online

  1. Jo Murkens, Devolution in Disguise: Miller and the Curse of the Government’s “Victory,” Journal of the Oxford Centre for Socio-Legal Studies
  2. Colin PA Jones, Different constitutions, similar defect?, The Japan Times
  3. Robin Verbeke, Hervorming van de provincies: quo vadis?, BelConLawBlog
  4. Michael Briguglio, Reforming Malta’s constitution to enhance the independence of ‘fourth’ branch institutions, ConstitutionNet
  5. Max Camphausen, A Step in the Right Direction for Minority Gender Recognition in Germany, OxHRH
  6. Mark Elliott, Privacy International in the Court of Appeal: Anisminic distinguished — again, Public Law for Everyone
  7. Joris Larik, Brexit and the Transatlantic Trouble of Counting Treaties, EJIL: Talk!
  8. Dana Burchardt, Belittling the Primacy of EU Law in Taricco II, Verfassungsblog
  9. Marco Bassini and Oreste Pollicino, Defusing the Taricco Bomb through Fostering Constitutional Tolerance: All Roads Lead to Rome, Verfassungsblog
  10. Shaunee Morgan and John Peng, On this Human Rights Day: Act on the Cries of Detained Immigrants for Dignity and Justice, JURIST
  11. Camila Gianella, Marta R. de Assis Machado, and Angélica Peñas Defagom Brazil: Conservative mobilization and adolescent pregnancy in Latin America, reprohealthlaw blog
  12. Jaclyn L. Neo, Constitutional Change in Singapore’s Elected Presidency: Navigating Questions of Ethnic Identity and Representation, Blog of the IACL, AIDC
  13. Eszter Bodnár, In the grey zone of direct democracy: government-initiated national surveys in Australia and Hungary, Blog of the IACL, AIDC
  14. Andrew Roberts, Appeals to Australia from Nauru: The High Court’s Unusual Jurisdiction, AUSPUBLAW
  15. Pierre de Vos, On the Nxasana judgment: No, the Constitution does not allow the President to flout the Constitution, Constitutionally Speaking
  16. Richard Primus, Senator Flake isn’t a Liberal, and Neither is Chief Justice Roberts, Balkinization
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Published on December 11, 2017
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How the Bolivian Constitutional Court Helped the Morales Regime to Break the Political Insurance of the Bolivian Constitution

Sergio Verdugo, Professor, Universidad del Desarrollo (Chile); JSD candidate, New York University*

In a 2016 referendum, a majority of Bolivians stopped President Evo Morales from running for a fourth Presidential term by rejecting a constitutional reform aimed at eliminating the constitutional limits on reelection. The failed bill establishing the constitutional modification resembled what David Landau calls “abusive constitutionalism,”[1] as it was intended at undermining constitutional democracy using formal constitutional means. In Bolivia —unlike the Colombian case, in which the Colombian Constitutional Court declared the unconstitutionality of a constitutional amendment aiming to authorize former President Alvaro Uribe’s second reelection—[2] it was not a court, but the people, who prevented the approval of the constitutional modification allowing the President to run for reelection.

However, the Morales regime could not take “No” for an answer, and found another constitutional means to authorize Morales’ third reelection. A group of legislators from the MAS (Movement to Socialism –Morales’ party) asked the Bolivian Constitutional Court (in Spanish, Tribunal Constitucional Plurinacional –TCP) to declare the unconstitutionality of several provisions, including constitutional provisions, that limited reelection.[3] On November 28 of 2017, the TCP ruled unanimously that the constitutional and legal rules limiting the reelection of the President and other elected authorities violated constitutional political rights, using an interpretation that relied on the American Convention on Human Rights (ACHR).[4] With this ruling, President Morales’ supporters managed to change the meaning of the Constitution and, as a result, the 2016 plebiscite became irrelevant. Morales will be able to seek a fourth presidential term that will finish in 2025 (his first term initiated in 2006), and he will probably be allowed to run for an unlimited number of terms. Also, with this ruling, the TCP seems to confirm a broader regional trend among constitutional courts that have challenged Presidential term limits in recent years, such as the cases of Venezuela, Ecuador, Nicaragua and Honduras.[5] As a result, the famous Colombian case restricting Uribe’s second reelection (which has fascinated comparative constitutional law scholars) seems to be an exception in the region.

Since the Bolivian Constitution did not establish a liberal democracy nor a procedure to transition to a liberal democracy, scholars could argue that the role of the TCP was not to enforce limits on political power but, instead, to help the socialist regime implement its policies, and to provide legal legitimacy to them.[6] If this is true, then the role of the TCP should be better explained by the role that courts typically perform under authoritarian regimes,[7] and not by what we can expect from courts under democratic or transition contexts. Even though the evidence of courts helping to advance democracies during democratization processes is limited,[8] it is useful to acknowledge their expected roles if we want to evaluate their rulings. If the Bolivian Constitution included provisions that limited political power, and the TCP failed to enforce them or even ruled against them, then we can criticize the TCP, and include it in the blacklist of courts that have been unable to achieve their political ends.

I argue that the Bolivian Constitution included a political insurance that was intended to contain the Morales’ regime political power, and that the TCP helped the regime to break an essential part of that insurance. As I will explain, and despite its supposed “post-liberal” character, the 2009 Constitution included specific provisions that connect to the liberal democratic tradition and limited the political power of the dominant political coalition. These limits included, for example, the establishment of limits on reelection, a bicameral Legislative Assembly (in Spanish, Asamblea Legislativa Plurinacional), and the requirement to approve constitutional changes through a particularly rigid process. The TCP was supposed to guarantee that these restrictions were not going to be ignored or violated but, instead, helped to overcome some of these limits to political power. Since violating this limits harms the competitiveness of the Bolivian political system and the political rights of the opposition, I claim that the TCP helped to break the insurance.

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Published on December 10, 2017
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Developments in South Korean Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on South Korean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

–Leo Mizushima, Research Associate at the Institute of Comparative Law at Waseda University

I. Introduction

Since the founding of the Republic of Korea in 1948 until the 1980s, Korea was under authoritarian government. Korea democratized in 1987, and the Constitutional Court was established the following year. The Korean Constitutional Court is dedicated to democratization and the improvement of human rights in Korean society, which reflects in the character of the Court. The year 2017 is the 30th anniversary of democratization.

The year 2016 was one of the most important years in the history of Korean constitutional law. Late in the fall, President Geun-hye Park became embroiled in a political scandal, dubbed the “Choi Soon-sil gate,” which resulted in a strong backlash from the people. The president was suspected of leaking state secrets to her longtime friend and private aide, Soon-sil Choi. The people protested against President Park and demanded her resignation. The impeachment bill of President Park was approved by the National Assembly on December 9, and the Constitutional Court had to decide if Park deserved to be impeached within 180 days. All eight judges of the court unanimously approved the impeachment on March 10 and President Park was officially impeached from office.

This article examines the system of constitutional review and the structure of the Korean Constitutional Court before introducing some cases. Subsequently, the major cases from 2016 will be introduced. The problems and tasks of the Korean Constitutional Court and the Constitution will be discussed in conclusion.

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Published on December 10, 2017
Author:          Filed under: Developments