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I·CONnect

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

2016 ICON·S Conference on Borders, Otherness and Public Law

Richard Albert, Boston College Law School

Last week, the International Society of Public Law (ICON·S) held its third major conference. Held at Humboldt University in Berlin, the conference featured a keynote address, three plenary panels and over 120 concurrent panels structured around the theme of “Borders, Otherness and Public Law.”

We are pleased to announce that videos are now available for viewing.

Introductory remarks by Ran Hirschl and Matthias Kumm, along with the keynote address by Françoise Tulkens with remarks from Sabino Cassese, are available here.

The first plenary panel on “Migration and Movement” features Alex Aleinikoff and Philippe Sands, with comments from Ayelet Shachar. It is chaired by Hélène Ruiz Fabri. The video is available here.

The second plenary panel on “Inequalities” features Susanne Baer and Catharine MacKinnon, with comments from Pratap Bhanu Mehta. The panel is chaired by Rosalind Dixon. The video is available here.

The third plenary panel is a “Judicial Interview and Dialogue” featuring Justice Koen Lenaerts, President of the Court of Justice of the European Union, and Justice Guido Raimondi, President of the European Court of Human Rights, interviewed by Joseph H.H. Weiler and Gráinne de Búrca. The video is available here.

We look forward to welcoming you to the next ICON·S Conference!

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Published on June 25, 2016
Author:          Filed under: Developments
 

Is There an Optimal Constitutional Design for Presidential Impeachments?

Juliano Zaiden Benvindo, University of Brasília

Comparative constitutional law is now faced with a rich debate over the scope, limits, and consequences of impeachment proceedings. Since the Brazilian President Dilma Roussef was temporarily suspended from office and thereby replaced by the acting President Michel Temer after the Senate had voted to begin an impeachment trial against her on May 11, this instrument has attracted the attention of constitutional scholars worldwide. For example, in What We Could Learn from Brazil (and Vice Versa) about Presidential Impeachment Procedures (and Related Matters), Vikram David Amar provides thought-provoking insights about how constitutional design can better cope with the complexities of such a dramatic mechanism by comparing the Brazilian and American systems. In another article titled Two Courts, Two Interpretations, Igor de Lazari, Antonio G. Sepulveda and Carlos Bolonha follow a similar path, although focusing mostly on the role of supreme courts. In a context where many agree that “these are testing times for Brazil’s young democracy and the biggest economy in Latin America,”[1] debates over how to suitably design this mechanism have become quite important. Is there an optimal design for impeachment mechanisms? This post tackles that question by comparing the U.S. and Brazilian models for impeachment.

Read the rest of this entry…

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

What’s New in Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

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

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

Developments in Constitutional Courts

  1. Romania’s Constitutional Court ruled that abuse of public office should remain a criminal offense.
  2. The U.S. Supreme Court affirmed the sovereignty of Native American tribal courts and emphasized the importance of addressing domestic violence against Native women.
  3. The Mombasa High Court in Kenya ruled that forced anal examinations and forced HIV and Hepatitis B tests for men suspected of homosexual conduct is constitutional.
  4. A former prostitute who had asked the Constitutional Court of Korea to decide whether the law punishing voluntary prostitution was proper has been fined following the court’s ruling in favor of the regulation.
  5. The European Court of Justice rejected a challenge to Britain’s refusal to pay family welfare benefits to unemployed EU migrants who do not have the right to reside in the UK.

In the News

  1. UN Women re-launched its Global Gender Equality Constitutional Database (GECG), a database that presents constitutional provisions through a gender lens from 195 constitutions from around the world.
  2. The Council of Europe’s human-rights commissioner criticized Poland’s socially conservative government, saying an erosion of the rule of law in the country is threatening the protection of human rights.
  3. The Mexican Congress passed several anti-corruption bills that would increase the severity of penalties for corruption charges.
  4. Canada’s Liberal government said that it would strike an amendment expanding the definition of who may seek physician-assisted suicide.
  5. Colombian lawmakers approved a legally binding measure that will incorporate the peace deal between the government and FARC guerrillas into the country’s constitution.
  6. 18 EU member states reached a general approach on two regulations aimed at determining the rules applicable to property regimes for married couples or registered partners in cross-border situations.
  7. The European Parliament voted on new rules to ensure free movement of citizens by making it simpler to prove the authenticity of documents.
  8. France issued an order that creates the new legal profession of Commissioner of Justice (commissaire de Justice) which merges the professions of bailiff and auctioneer [article in French].
  9. A South African government commission declared that a province’s “virgin scholarship” scheme for students who stay virgins is unconstitutional.

New Scholarship

  1. James Thuo Gathii, The Contested Empowerment of Kenya’s Judiciary 2010-2015, Historical Institutional Analysis (2016) (assessing the empowerment of the Kenyan Judiciary and the backlash from Parliament and the Executive that followed)
  2. Chris Land, Ultra Vires: The Eurozone Crisis and the European Central Bank’s Lost Independence, 25 Minnesota Journal of International Law (2016) (analyzing the ongoing Eurozone crisis, establishing Europe’s separation of powers relationship and the European Central Bank’s independence, while connecting events of the crisis)
  3. Gabor Halmai, Judicial Review of Constitutional Amendments and New Constitutions in Comparative Perspective, 13 Wake Forest Law Review (2016) (examining the legitimacy of judicial review of the merits of proposed new constitutions and constitutional amendments)
  4. Katharine Gelber and Adrienne Stone, Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography, in Research Handbook on Gender and Constitutions, Helen Irving and Ruth Rubio-Marin eds. (2016)(discussing the regulation of pornography in light of constitutional law in comparative perspective)
  5. Mark Jia, Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harvard Law Review 2213 (2016) (assessing a relatively recent innovation in China’s judicial reform project: the use of “guiding cases” to achieve greater adjudicative consistency across lower courts)
  6. Lu Xu, The New Real Property Registration Structure in China: Progress with Unanswered Questions, 5 Global Journal of Comparative Law 91 (2016) (explaining the objectives and measures of the new real property registration structure in China, and identifying and discussing questions remaining unanswered that would have serious implications on the integrity and reliability of the real property register)
  7. Passing Wealth on Death, Will-Substitutes in Comparative Perspective, Alexandra Braun and Anne Röthel eds. (2016) (examining will-substitutes in comparative perspective across common law, civil law and mixed legal jurisdictions)
  8. Apostolos Anthimos Sr., Fictitious Service of Process in the EU – Requiem for a Nightmare?, Czech Yearbook of International Law 2017 Volume VIII (forthcoming), (discussing a recent decision of the ECJ that interprets the EU-Service regulation as banning all forms of fictitious service by highlighting its repercussions both within the framework of the Service Regulation and in the ambit of the multilateral Hague Service Convention)

Calls for Papers and Announcements

  1. McGill University’s Faculty of Law and the Peter MacKell Chair in Federalism announced the creation of the Baxter Family Competition on Federalism with support of Rachel Baxter and Colin Baxter. Participants are invited to submit an original essay related to an aspect of federal theory or practice by September 30, 2016.
  2. The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) invites submissions to fill a panel on “New Perspectives in Comparative Law” to be held at the Society’s 2016 Annual Meeting, which will be held October 28-29, 2016 at the University of Washington in Seattle. The deadline for submissions has been extended to July 1, 2016.
  3. The Société de legislation compare, in cooperation with the Centre de droit privé fondamental of the University of Strasbourg and the Centre d’études sur l’éfficacité des systèemes juridiques continentaux of the Université of Reims Champagne-Ardenne, has organized an international conference titled “The application of foreign law under constitutional and treaty-based review” to be held at the Cour de cassation in Paris, France on September 23, 2016
  4. The Council on International Law and Politics (CILP) and Universidad Rey Juan Carlos (Madrid, Spain) launched a new master in Global Affairs that will take place in Strasbourg, France and will start in January 2017.
  5. The African Public Procurement Regulation Research Unit invites abstracts for paper presentations and workshops for its 2nd international conference on Public Procurement Law in Africa to be held on November 24-25, 2016 at the Century City Conference and Hotel, in Cape Town, South Africa.
  6. The Indian Competition Law Review issued a call for submission of manuscripts for its forthcoming issue.
  7. The Irish Journal of European Law issued a call for original papers for its 2016 volume.
  8. The American Society of International Law International Criminal Law Interest Group issued a call for papers for a works-in-progress workshop to be held on December 9, 2016 at the Southern Methodist University School of Law
  9. The Center for Human Rights and Global Justice (CHRGJ) invites submissions of scholarly papers for a conference on human rights and tax to be held at New York University School of Law on September 22-23, 2016.
  10. The American Society of International Law (ASIL) is seeking submissions of scholarly paper proposals for the ASIL Research Forum to be held at the University of Washington School of Law in Seattle, Washington on November 11-12, 2016.

Elsewhere Online

  1. Tomasz Tadeusz Koncewicz, Polish Judiciary and Constitutional Fidelity: beyond the institutional “Great Yes”?, Verfassungsblog
  2. Kaleeswaram Raj and Thulasi K Raj, Amend criminal defamation, Deccan Herald
  3. Todd Spangler, Can Donald Trump really ban Muslim immigration?, Detroit Free Press
  4. Jessie Hill, After Texas: What’s at Stake for the Rest of Country in Whole Woman’s Health v. Hellerstedt, Jurist
  5. Catherine Muyeka Mumma, Kenya’s failure to implement the two-third gender rule: The prospect of an unconstitutional Parliament, ConstitutionNet
  6. Willem H. Brakel, Include the environment in New Columbia’s constitution, The Washington Post
  7. Stijn Lamberigts, The Presumption of Innocence (And the Right to be Present at Trial) Directive, European Law Blog
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Published on June 20, 2016
Author:          Filed under: Developments
 

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 Constitutional Court of Ukraine declared unconstitutional the limits on the lifetime allowance for retired judges.
  2. Thailand’s Constitutional Court accepted a petition seeking a ruling on the legality of the country’s referendum law, which states that propagation of information that is inconsistent with the truth and aims to influence voting shall be seen as disrupting the voting process.
  3. The Samoan Federation of America petitioned the U.S. Supreme Court to overturn a century-old law that denies American Samoans the right to be U.S. citizens at birth.
  4. Justices of the Constitutional Court of South Africa Bess Nkabinde and Chris Jafta applied to their own court to reopen a case they are litigating, after the court had refused them leave to appeal.
  5. Former U.S.Central Intelligence Agency operative Sabrina de Sousa will be extradited to Italy to serve a four-year prison sentence following a ruling by Portugal’s Constitutional Court.

In the News

  1. Nigeria’s House of Representatives is considering a constitutional amendment to lower age limits for political office and allow independent candidacy.
  2. Kenya’s National Assembly committees met to set a countrywide programme for collecting views from citizens on potential constitutional and electoral reforms.
  3. Hungarian lawmakers approved a constitutional amendment granting the government extended powers, including the possibility of deploying the armed forces, in case of terror acts or threats.
  4. Germany and China agreed to set up an “early warning system” to avoid problems for German non-governmental organizations from a new Chinese law that restricts such groups.
  5. A Canadian-Iranian professor researching women in the Muslim world has been arrested by Iranian intelligence officers, the latest in a series of detentions of Iranians holding dual citizenship.

New Scholarship

  1. Engineering Constitutional Change, A Comparative Perspective on Europe, Canada and the USA (Xenophon Contiades ed.) (2016 paperback edition) (providing a holistic presentation of the reality of constitutional change in 18 countries (the 15 old EU member states, Canada, Switzerland and the USA))
  2. Holning Lau, Comparative Perspectives on Strategic Remedial Delays, Tulane Law Review (forthcoming) (expanding upon on the understanding of remedial grace periods—the periods of time that courts sometimes grant the government to correct a rights violation)
  3. Catherine Dupré, The Age of Dignity, Human Rights and Constitutionalism in Europe (2015) (providing a critical investigation of human dignity’s origins, development and above all its potential at the heart of European constitutionalism today)
  4. Mark S. Brodin, The British Experience with Hearsay Reform: A Cautionary Tale, Fordham Law Review (2016) (exploring the British experience with the Civil Evidence Act of 1995 and the Criminal Justice Act of 2003, which significantly reformed the common law treatment of hearsay and substitute a discretionary approach to admission)
  5. Yota Negishi, The Pro Homine Principle’s Role in Regulating the Relationship between Conventionality Control and Constitutionality Control, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-13 (2016) (conducing a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts)
  6. Silvia Suteu and Ibrahim Draji, ABC for a Gender Sensitive Constitution (2016) (comprehensively covering all aspects of engendering constitution-making, from substantive provisions to process requirements)
  7. Tom G. Daly, The End of Law’s Ambition: Human Rights Courts, Democratisation and Social Justice, iCourts Working Paper Series No. 67 (arguing that the expansion of regional human rights courts’ ambitions is just part of a century-long constitutional story that has pushed law’s transformational ambitions to its limits, and that this increase in ambition appears to raise acute dangers for regional human rights courts when viewed against wider trends)
  8. Warren Binford, Comparative Constitutional Rights of Children, Max Planck Encyclopedia of Comparative Constitutional Law (2016) (providing a comparative overview of the constitutionalization of children’s rights around the world over the past century)
  9. Legal Grounds III Reproductive and Sexual Rights in Sub-Saharan African Courts (Godfrey Kangaude ed.) (forthcoming 2016) (summarizing and analyzing court decisions from Sub-Saharan Africa)

Calls for Papers and Announcements

  1. The Arab Association of Constitutional Law, which is the first regional association of constitutional law in the region, is looking to recruit a Secretary General and a Coordinator. More information is available here.
  2. The University of Essex issued a call for participation for a conference and research workshops on “Comparative Public Law and European Legal Identity.” The programme includes two workshops for presenting on-going work: one on September 29-30 2016 at the University of Essex and one in mid-December 2016 in Brussels; and one conference in March 2017 in London.
  3. The AALS Africa Section, in cooperation with their co-sponsor the AALS East Asia Law & Society Section, announced a call for papers for their 2017 Annual Meeting program: “China in Africa: Legal, Political and Development Issues in the Africa-China Relationship” to be held on January 3-7, 2017 in San Francisco.
  4. The American Society of International Law issued a call for papers for its 2016 Research Forum, to be held on November 11-12, 2016, at the University of Washington School of Law.
  5. Faulkner Law Review at the Thomas Goode Jones School of Law at Faulkner University invites proposals for its 5th Annual Law Review Symposium, “The Role of the Judge in the Anglo-American Tradition,” to be held on September 22-23, 2016.

Elsewhere Online

  1. Fiona de Londras, Ireland needs constitutional referendum as UN committee finds abortion law indefensible, ConstitutionNet
  2. Clara Burbano-Herrera, Why has the EU’s Temporary Protection Directive not been applied during the migration crisis in order to receive Syrians and other asylum seekers?, AfricLaw
  3. Michelle Everson, An Ideal, not a Place: A Euro-Critic’s Case for the UK Remaining in the EU, Verfassungsblog
  4. Nadia Motraghi, Brexit: What would be the timetable for leaving?, Oxford Human Rights Hub
  5. Scarlet Kim, ECHR Jurisdiction and Mass Surveillance: Scrutinising the UK Investigatory Power Tribunal’s Recent Ruling, EJIL: Talk! – Blog of the European Journal of International Law
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Published on June 13, 2016
Author:          Filed under: Developments
 

Do All Democracies Need Party Dissolution Mechanisms?

Brian Christopher Jones, Liverpool Hope University

Although it may appear harsh or severe, the ability of many democracies to dissolve political parties based on the (supposedly) “unconstitutional” or “anti-democratic” nature of their existence is an inherent constitutional feature of many states. Democracy, it appears, must at times protect itself from threat or collapse. Perhaps the most prominent example is Germany, where the Federal Constitutional Court (the Bundesverfassungsgericht) possesses the power to perform such dissolutions. This authority was viewed as a necessity after the rise of National Socialist German Workers’ Party and the tumultuous Second World War.

While contemporary societies may believe that such threats are for the history books, the dissolution of political parties remains an active democratic concern.

Read the rest of this entry…

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Published on June 8, 2016
Author:          Filed under: Analysis
 

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 Thai Ombudsman’s office stated that it will ask the Constitutional Court to rule on whether a government ban on misleading or rude speech about a referendum over a draft charter is unconstitutional.
  2. The Turkish Constitutional Court rejected petitions by opposition lawmakers seeking to lift immunity for members of Parliament.
  3. The Indian Supreme Court directed the central government to formulate a national policy for proper rehabilitation of rape survivors.
  4. The U.S. Supreme Court ruled that prosecutors in Georgia violated the Constitution by striking every black prospective juror in a death penalty case against a black defendant.
  5. Alternattiva Demokratika secretary general Ralph Cassar stated that the allocation of additional seats in Malta’s parliament should be decided by the Constitutional Court.

In the News

  1. Ukraine passed a constitutional amendment focusing on judicial reforms aimed at curbing corruption within the judiciary.
  2. The EU Executive issued a warning to the Polish government on the ground that recent changes made to the structure of the country’s constitutional court could damage the rule of law.
  3. The Women & Child Development Ministry in India released the draft bill on “Trafficking of Persons (Prevention, Protection and Rehabilitation)” for further consultation.
  4. Pakistan’s Senate passed a constitutional amendment creating new qualification criterion for the appointment of Chief Election Commissioner and members of the Election Commission.
  5. China indicated that it will ignore the ruling of the Permanent Court of Arbitration on the South China Sea dispute.

New Scholarship

  1. Joseph Eliot Magnet, Constitution Making in Eritrea: Why It Is Necessary to Go Back to the Future, 8 African Journal of Legal Studies (2015) (arguing that implementation of Eritrea’s 1997 Constitution would likely bring Eritrea’s two large nationalities into conflict with its eight smaller nationalities with high risk for violent civil strife that could spill over into neighboring countries)
  2. 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 ability of the substance of rights test introduced by the European Court of Justice to change the federal balance of competences within the EU and questioning whether it would be desirable to use this test in a far-reaching manner)
  3. Zachary D. Clopton, Judging Foreign States, 94 Washington University Law Review (2016) (identifying and cataloging the circumstances in which U.S. courts sit in judgment of foreign states and discussing the various doctrines and principles relating to the issue of sitting in judgment on foreign state acts)
  4. Katerina Linos, How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics, 109 American Journal of International Law 475 (2015) (putting forward and discussing a comprehensive approach to be applied by international courts, commentators and textbooks while evaluating compliance with treaties by different states)
  5. Tom G. Daly, The End of Law’s Ambition: Human Rights Courts, Democratisation and Social Justice, iCourts Working Paper Series No. 67 (2016) (analyzing the changing role and duties of regional human rights courts from being merely the dispensers of individual justice to becoming engines of wholesale societal transformation at the state level as well).
  6. Attila Badó and Peter Mezei, Comparativism and the Fundamental Law – The Hungarian Fundamental Law in Light of the Seven Constitutional Criteria of Raz (2016) (evaluating the Fundamental Law of Hungary through the lens of Joseph Raz’s seven constitutional criteria in order to undertake an analysis that is acceptable to those supportive and critical of the Fundamental Law)
  7. Junko Kato and Seiki Tanaka, Comparative Taxation and Democratization: State Revenue Production and Democratization Revisited (2016) (tracking the evolution of modern taxation and how modern taxes have helped democratization)
  8. Special Issue: Constitutionalism in Rough Seas: Balancing Religious Accommodation and Human Rights in, through, and despite, the Law, Mirjam Künkler, Hanna Lerner and Shylashri Shankar (Guest Editors), 60 The American Behavioral Scientist (2016)

Calls for Papers and Announcements

  1. The Benjamin N. Cardozo School of Law will conduct a one day Conference on the theme “Between Europe and the United States: The Israeli Supreme Court in Comparative Perspective” on June 27, 2016. The Conference is open to the public but interested participants must send an RSVP to ISCP@yu.edu with their name, affiliation and contact information.
  2. The Research and Teaching Programme CoCoA (Comparing Constitutional Adjudication) will host a residential seminar on September 19-21, 2016 at the Law Department of University of Trento titled “Advanced Perspectives in Comparative Constitutional Law – Conversations with Margit Cohn.” Applications for admission must include a CV and a Statement of Interest, which must be sent to cocoa@unitn.it before June 18, 2016.
  3. The University of Exeter Law School and ELTE Faculty of Social Sciences are organizing an International Conference on “European Constitutional Democracy in Peril: People, Principles, Institutions” on June 23-24, 2016 in Budapest.
  4. The Union Internationale des Avocats (UIA-International Association of Lawyers) is conducting a research based competition for the“7th International Jacques Leroy Prize – Business and Human Rights.” The entries must focus on the impacts of climate change on human rights and the solutions companies offer. Interested participants must submit their written entries (trial argument, dissertation, study or commentary on a practical case) by post to UIA, 25 rue du Jour, 75001 Paris-France or by mail to uiacentre@uianet.org.
  5. The International Institute of Knowledge Management, Sri Lanka is inviting abstracts for the “3rd International Conference on Social Sciences.” The Conference will be conducted in Bali, Indonesia on September 19-21, 2016.
  6. The University of Leeds announced the “School of Law Inaugural Postgraduate Research Conference 2016: Law, Justice and Austerity” to be held on September 13, 2016. Abstracts plus a short (academic or work) biographical summary should be sent to L.Harding@leeds.ac.uk by June 24, 2016.

Elsewhere Online

  1. Michael Addaney, Uganda: Why the Constitutional Court should rule on the right to health, AfricLaw
  2. Laurence H. Tribe and Joshua Matz, Will eight justices become the new normal?, The Washington Post
  3. Faizan Musthafa, Does the government want ‘parrot judges’?, LiveLaw
  4. Gautam Bhatia, The “Balancing” Test and Its Discontents, Indian Constitutional Law and Philosophy
  5. Ruthann Robson, Daily Read: Clay v. United States (1971), Constitutional Law Prof Blog
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Published on June 6, 2016
Author:          Filed under: Developments
 

Buddhism and/in Comparative Constitutional Law

Dr. Benjamin Schonthal, University of Otago, Dunedin, New Zealand

In recent years, a slow but steady tectonic shift has taken place within the study of religion and constitutional law. It was not so long ago that studying religion and constitutional law meant studying the regulation of religion in secular liberal contexts—generally among a limited set of ‘usual suspect’ Anglophone and/or European cases.[1] Today, things appear to be changing. There is, now, a growing subfield within comparative constitutional law dedicated to examining religiously€ preferential constitutions, especially those outside of the Anglophone world. At the vanguard of this subfield are scholars working on the history and practice of constitutional law in Muslim-majority countries. Thanks to these scholars, the field of comparative constitutional law has a benefited from a corpus of first-rate research into the links between Islam and public law in Egypt, Pakistan, Malaysia, Indonesia, Tunisia, Iran, Iraq and other places.

These advances in the study of Islam and constitutional law, while an enormous boon for scholars, have also thrown into relief the relative poverty of research regarding other types of religiously preferential constitutions. Particularly overlooked in this literature are the constitutional regimes that give special status and recognition to Buddhism.

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Published on June 3, 2016
Author:          Filed under: Developments
 

Going Against the Consociational Grain: The Debate on the Dutch Advisory Referendum Act and the Ukraine-EU Association Agreement Referendum

Reijer Passchier & Wim Voermans, Leiden University

On April 6, 2016, the Netherlands held the first referendum under its new Advisory Referendum Act of 2015 (Wet raadgevend referendum)[1] and the third national referendum in two centuries.[2] This was a test on a highly controversial issue: Dutch political (consocialist) culture and referendums do not mix well.

The referendum was on the question: ‘Are you for or against the Approval Act of the Association Agreement between the European Union and Ukraine?’ Though the turnout was a meager 32.28% (just reaching the 30% turnout threshold for a valid referendum), a clear majority of 61% of the voters checked the box ‘against’. Although the outcome merely presents ‘advice’ to the government, it was felt that the ‘no-vote’ needed to be followed up upon. That means that according to the Advisory Referendum Act (ARA), the original ratification Act for the EU Association Agreement, that had already passed both Houses of Parliament, now needs to be wheeled back. Under the ARA the Dutch government must, if it it wants to annul the original ratification act, propose a follow-up Bill to repeal the ratification act. The other option is to neglect the outcome of the referendum and to decide to put the original ratification act into effect, and thereby abide by Parliament’s will. Dutch referendums are corrective in nature – with acts of parliament as its subjects – but they are not legally binding. This corrective, but yet advisory non-binding nature of referendums takes some getting used to in Dutch political culture. On the one end of the political spectrum, some say that the government cannot ignore what basically amounts to a ‘vote of no confidence’ against (further) European integration. On the other end, commentators deny the relevance of the referendum, highlighting the fact that all-in-all a ‘mere’ 19,7% of the total electorate cast a vote against.

Indeed, the question how to follow-up on the April referendum is a major headache for the Dutch government who currently preside the European Union.

Read the rest of this entry…

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Published on June 1, 2016
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

–Margaret Lan Xiao, SJD Candidate, Case Western Reserve University

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 South Korea declined to consider whether the National Assembly speaker’s refusal to bring bills to a vote because of the National Assembly Advancement Act violated the authority of National Assembly lawmakers.
  2. Macedonia’s constitutional court ruled that a decision to dissolve parliament to pave the way for early general elections was unconstitutional, and has formally annulled the move.
  3. Bulgarian President Rossen Plevneliev asked the Constitutional Court to rule whether three of the questions planned for a national referendum in autumn 2016 are permissible under the country’s constitution.
  4. In Turkey, the Republican People’s Party and the Peoples’ Democratic Party made applications to the Constitutional Court against the recently passed bill to lift some deputies’ parliamentary immunities.
  5. Egypt’s Supreme Constitutional Court appointed judge Abdel-Wahab Abdel-Razek as the successor to the court’s current head, Adly Mansour.
  6. The High Court of Kenya at Nairobi declared Section 29 of the Kenya Information and Communication Act unconstitutional.

In the News

  1. Jordan’s King Abdullah appointed veteran politician Hani Mulqi as caretaker prime minister after dissolving parliament as its four-year term nears its end, and charged him with organising new elections by October.
  2. Turkey’s new government, led by the current president’s loyal ally, won a vote of confidence in parliament.
  3. Iran’s moderate conservative parliament leader was re-elected despite the gains made by reformists in elections held previously.
  4. The European Parliament approved a proposal for a task force dedicated to digital currencies and blockchain technology.
  5. Sweden’s parliament ratified a deal granting NATO more access to the neutral Nordic country for training exercises and in the event of a war in the region.
  6. Greece’s parliament approved fresh austerity measures to secure bailout cash.
  7. Taiwan’s new government dropped a lawsuit against 126 protesters who stormed the cabinet headquarters in 2014.
  8. The Council of the European Union formally adopted the Network and Information Security Directive.
  9. The European Commission issued a study on a comparative analysis of non-discrimination law in Europe.

New Scholarship

  1. Mohamed Abdelaal, Entrenchment Illusion: The Curious Case of Egypt’s Constitutional Entrenchment Clause, 16 Chicago-Kent Journal of International and Comparative Law (2016) (examining the paradoxical language of Egypt’s constitutional entrenchment clause)
  2. Bojan Bugarič and Tom Ginsburg, Courts vs. Autocrats in Post-Communist Europe, Journal of Democracy (forthcoming 2016) (examining the institutional fragility of constitutional courts in the face of illiberal democracy in Central and Eastern Europe)
  3. Jack Tsen-Ta Lee, The Limits of Liberty: The Crime of Male Same-sex Conduct and the Rights to Life and Personal Liberty in Singapore: Lim Meng Suang v Attorney-General[2015] 1 SLR 26, 46 Hong Kong Law Journal (2016) (examining the analyses of the provision of rights to life and personal liberty guaranteed by Art 9(1) of the Singapore Constitution by the Court of Appeal in Lim Meng Suang v. Attorney-General (2014), and by the High Court in Tan Eng Hong v. Attorney-General (2013))
  4. R. G. Murray, Shifting Emergencies from the Political to the Legal Sphere: Placing the United Kingdom’s Derogations from the ECHR in Historical Context, in The International Human Rights Judiciary and National Parliaments: Europe and Beyond (Matthew Saul, Andreas Follesdal, and Geir Ulfstein eds.) (2016) (examining whether the arrangements under Article 15 of the European Convention on Human Rights have actually conditioned particular emergency responses by UK governments, based not on security rationale, but on expediency)
  5. Jeff King, The Doctrine of Odious Debt in International Law: A Restatement (2016) (reaffirming the original doctrine of odious debt through a meticulous and definitive examination of state practice and legal history)
  6. Philipp Hacker and Bilyana Petkova, Reining in the Big Promise of Big Data: Transparency, Inequality, and New Regulatory Frontiers (2016) (proposing a new regulatory framework and research agenda to put the powerful engine of Big Data to the benefit of both the individual and societies adhering to basic notions of equality and non-discrimination)
  7. Farrah Ahmed, Remedying Personal Law Systems, International Journal of Law, Policy and the Family (forthcoming) (proposing a way out of the stalemate in India that has dogged efforts to reform the personal law system)
  8. Josephine Dawuni, African Women Judges on International Courts: Symbolic or Substantive Gains?, iCourts Working Paper Series, No. 60 (2016) (documenting the substantive contributions that women judges make to international courts)
  9. Richard S. Kay, Constitutional Construction and the (In)Complete Constitution (2016) (providing a critical examination of the concept of “constitutional construction”)
  10. Sally Engle Merry, The Rule of Law and Authoritarian Rule: Legal Politics in Sudan, Law and Social Inquiry (2016)(explaining how historical and social conditions shape the way rule of law mechanisms work in practice)
  11. Rachel Ellett, Rethinking Law and State Building in Sub-Saharan Africa, Law & Social Inquiry (2016) (arguing that contextualized analyses of courts are critical to understanding judicial decision making and judicial empowerment)
  12. Mark Fathi Massoud, Ideals and Practices in the Rule of Law: An Essay on Legal Politics, Law & Social Inquiry (2016) (describing the sociolegal study of the rule of law as an investigation into both a set of ideals and a set of practices)
  13. Martin Krygier, The Rule of Law Between England and Sudan: Hay, Thompson, and Massoud, Law & Social Inquiry (2016) (arguing that Mark Fathi Massoud’s book oscillates between two interpretive modes of the rule of law, as represented by the work of legal historians Douglas Hay and E.P. Thompson)

Call for Papers and Announcements

  1. The American Society of International Law (ASIL) issued a call for paper proposals for the ASIL Research Forum to be held on November 11-12, 2016, at University of Washington School of Law in Seattle, Washington.
  2. The University of Washington School of Law’s Graduate Tax Program issued a call for papers for its Fourth Annual Tax Symposium to be held on October 7, 2016.
  3. The University of Surrey, Brunel University of London, and NEMODE collectively issued a call for papers for the SRIBE Legal Workshop titled “To Score and to Protect? Credit Risk Analysis using Big and Open Data meets Privacy” to be held on June 23, 2016 at the Institute of Advanced Legal Studies in London, UK.
  4. The AALS Section on East Asian Law & Society issued a call for papers for its “research in progress” program at the AALS Annual Meeting to be held on January 3-7, 2017 in San Francisco.
  5. The AALS Section on Law and Anthropology issued a call for papers for its program titled “Qualitative Data and Legal Advocacy, Research, and Teaching” at the AALS Annual Meeting in San Francisco to be held on January 3-7, 2017.

Elsewhere Online

  1. Derek O’Brien, Jamaica’s drift towards republicanism: Possible consequences for the Caribbean, ConstitutionNet
  2. Sufian Obeidat, Jordan’s 2016 constitutional amendments: A return to absolute monarchy?, ConstitutionNet
  3. Garrett Epps, Why Legislate When Judges Will Do It for You?, The Atlantic
  4. Thabang Mokgatle, The imminent mass exodus from the ICC by African member states: A turning point for justice in Africa?, AfricLaw
  5. Robert Barnes, Eight ‘is not a good number’ for the Supreme Court, Ginsburg says, The Washington Post
  6. The Editorial Board, Congress Moves, Finally, on Toxic Chemicals, The New York Times
  7. William Egginton, Letter From Austria: Is Europe’s ‘Tolerant Society’ Backfiring?, The New York Times
  8. Jacob Gershman, Proposed Bill Could Help Facebook Quash Privacy Lawsuit, The Wall Street Journal
  9. Stian Øby Johansen, EU law and the ECHR: the Bosphorus presumption is still alive and kicking – the case of Avotiņš v. Latvia, EU Law Analysis
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Published on May 30, 2016
Author:          Filed under: Developments
 

Constitutional Challenge to the State Religion Status of Islam in Bangladesh: Back to Square One?

–Ridwanul Hoque, Professor of Law, Dhaka University

On March 28, the High Court Division of the Bangladesh Supreme Court summarily dismissed a 28 year-old constitutional petition challenging Islam as the state religion. The court said that the petitioners lacked standing to litigate, but it did not hold any hearing at all.[1] Things, however, are not as simple as they might appear. The challenge goes much deeper into the contested identity of the nation itself, and, inevitably, to the core of the judicial role in moral, political, and religious disputes in an ever transitioning or divided society.

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Published on May 27, 2016
Author:          Filed under: Analysis