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

Video Interview: “Constitutional Sunsets and Experimental Legislation” featuring Sofia Ranchordás

Richard Albert, Boston College Law School

In this latest installment of our new video interview series at I-CONnect, I interview Sofia Ranchordás on her new book on Constitutional Sunsets and Experimental Legislation: A Comparative Perspective, published by Edward Elgar.

Here is the publisher’s abstract for the book:

This innovative book explores the nature and function of ‘sunset clauses’ and experimental legislation, or temporary legislation that expires after a determined period of time, allowing legislators to test out new rules and regulations within a set time frame and on a small-scale basis. Sofia Ranchordás presents a thorough analysis of sunset clauses and experimental legislation from a comparative perspective, and offers a clear legal framework for their implementation.

The author begins with a comprehensive history of sunset clauses and experimental legislation, along with a clear explanation of their characteristics and potential uses. She then analyzes the relationship between these legislative instruments and a number of fundamental legal principles, including legal certainty, equal treatment, proportionality and separation of powers. This thorough exploration of sunset clauses and experimental regulations places them within a broader legal context and makes a compelling case for their increased use.

In the interview, we discuss the challenge of making laws in a time of change. Ranchordás introduces us to what she refers to as “dynamic instruments” that help ensure that law keeps up with the times, namely sunset clauses and experimental legislation. Ranchordás engages in a rich comparative inquiry into these dynamic instruments with specific reference to the Germany, the United States and the Netherlands.

Sofia Ranchordás is an Assistant Professor at Tilburg Law School and currently a Resident Fellow at the Information Society Project at Yale Law School. Ranchordás focuses her research in legislation and regulation, law and innovation, constitutional and administrative law, and fundamental principles of law. In addition to her monograph, she is co-editor of a forthcoming edited volume on “The Judge and the Proportionate Use of Discretion” and has published papers in several journals including the Statute Law Review, Theory and Practice of Legislation, and Tijdschrift voor Wetgeving. Ranchordás is a graduate of Portuguese Catholic University, Utrecht University, Tilburg University and the University of Antwerp.

The full interview runs 17 minutes, and is available here.

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Published on April 18, 2015
Author:          Filed under: Analysis, New Voices
 

Taking Aim at Cooperative Federalism: The Long-Gun Registry Decision by the Supreme Court of Canada

Johanne Poirier[*], Université libre de Bruxelles 

On March 27, 2015, a highly divided Supreme Court of Canada rendered a momentous ruling which reveals a severe divergence on the nature of Canadian contemporary federalism.[1]  The tight 5 to 4 decision also underlines a different conception of the role of the judicial branch regarding the defence and promotion of cooperative behaviour by public authorities, principally the legislative branch, under Canadian constitutional law.

The majority judges ruled that pursuant to its criminal law power, the federal Parliament could not only decriminalise the possession of long-guns, but that it could also destroy all data relative to the pre-existing registration of those guns.  The decision raised the question whether a legislative assembly could unilaterally abrogate any provision it has previously – and constitutionally – adopted, when the programme at stake was designed partly in association with other orders of government.

1. Three dimensions of cooperative federalism

Over the last decade, “cooperative federalism” has entered the discourse of the Supreme Court, in a way that partly contradicts the original structure of the Canadian federation, which is largely “dualist”.   Hence, with very few exceptions, the 1867 Constitution Act grants each order of government exclusive competences over listed matters.  Moreover, each order is endowed with parallel and complete legislative, executive, and to a large extent judicial, powers and institutions, through which they are meant to act in an independent fashion. The evocation of “cooperative federalism” has had two distinct impacts on this traditional conception of federalism.

Read the rest of this entry…

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Published on April 15, 2015
Author:          Filed under: Analysis
 

Fourth Annual YCC Global Conference and 2015 YCC Prizes

Richard Albert, Boston College Law School

As Chair of the Younger Comparativists Committee (“YCC”) in the American Society of Comparative Law (“ASCL”), I am pleased to announce that younger scholars from around the world will gather later this week at Florida State University College of Law in Tallahassee for the Fourth Annual YCC Global Conference.

The conference will be structured around concurrent panels on all subjects of comparative public and private law. It will feature a plenary luncheon panel on “Perspectives on Latin American Constitutional Law.”

The full program is available here.

Our host and Program Chair is David Landau. David is a leading scholar in the field of comparative public law, an award-winning teacher, a co-founder of this blog, and a dear friend.

Since August, David has led a tireless and enthusiastic Program Committee to plan this conference. David was supported on the Committee by Ozan Varol (Lewis & Clark), Mohamed Abdelaal (Berkeley), Dawood Ahmed (Max Planck), Sujata Gadkar-Wilcox (Quinnipiac), Daniel Ghezelbash (Macquarie), Claudia Haupt (Columbia), Stefanus Hendrianto (Santa Clara), Neha Jain (Minnesota), Joshua Karton (Queen’s), Alan Koh (BU/NUS), Rana Lehr-Lehnardt (UMKC), Eugene Mazo (Wake Forest), Sally Richardson (Tulane), Ioanna Tourkochoriti (NUI Galway), Vanice Valle (Estacio de Sa) and me.

The annual YCC Global Conference has become the premiere scholarly gathering in the world for younger scholars of comparative law. This edition of the conference will welcome around 100 scholars from far and near: Australia, Belgium, Brazil, Canada, China, Colombia, Denmark, England, Egypt, France, Japan, India, Israel, Italy, Malaysia, Pakistan, Singapore, Switzerland, Taiwan, Uganda, and the United States.

The Fourth Annual YCC Global Conference builds on our previous conferences. Our first global conference was hosted by Claudia Haupt in April 2012 at George Washington University. Our second was co-hosted by Shawn Boyne and Mohamed Arafa in April 2013 at Indiana University in Indianapolis. Our third was hosted by Ozan Varol in April 2014 at Lewis & Clark University.

We invite all younger scholars of comparative law to make plans to join us in 2016 for an important milestone: the Fifth Annual YCC Global Conference, to be hosted by Sally Richardson at Tulane University in New Orleans. More details to come soon.

Conference Prizes

As is now our custom, we award scholarly prizes at the YCC Global Conference. I am pleased to announce this year’s prize winners.

The Inaugural Richard M. Buxbaum Prize for Teaching in Comparative Law
Awarded to an untenured scholar in a tenure-track position at an ASCL Member School in recognition of teaching excellence in any subject of comparative law. Named in honor of the 2014 recipient of the ASCL Lifetime Achievement Award.
  • Recipient: Kirsten Anker, McGill University, Faculty of Law

The Colin B. Picker Graduate Prize
Awarded in recognition of the best paper submitted by a graduate student to the annual YCC Global Conference. Named in honor of the founding chair of the YCC.

  • Recipient: Katharine Schmidt, Yale Law School
  • Honorable Mentions: Shoaib Ghias, University of California, Berkeley School of Law; Benjamin Chen & Zhiyu Li, University of California, Berkeley School of Law

The Phanor J. Eder Prize in Comparative Law
Awarded in recognition of the best paper written by an undergraduate law student, J.D. or LL.B., in response to an open Call for Papers. Named in honor of the founding president of ASCL.

  • Recipient: Tom Brower, University of Virginia School of Law
  • Honorable Mentions: Philip M. Thoennes, Lewis & Clark Law School; Julian Yang, Queen’s University Faculty of Law

In honoring each of these prize winners, the YCC honors by association all younger scholars who are working to deepen the study of comparative law, to strengthen cross-national and interdisciplinary connections, and to enrich our field of scholarly interest.

We also express our gratitude to all who helped in the administration of these prizes: Afra Afsharipour (UC Davis), Mohamed Arafa (IU-McKinney), Antonia Baraggia (Milan), Shawn Boyne (IU-McKinney), Christopher Bruner (W&L), Cristina Fasone (EUI), Virginia Harper Ho (Kansas), Neha Jain (Minnesota), Joshua Karton (Queen’s), Thomas Perroud (Paris 12), Aparna Polavarapu (SC), Sally Richardson (Tulane), Ioanna Tourkochoriti (NUI Galway), Ozan Varol (Lewis & Clark) and Patrick Yingling (Pittsburgh).

Let me also recognize my colleagues on the YCC Board: Afra Afsharipour (UC Davis), Virginia Harper Ho (Kansas), Sally Richardson (Tulane) and Ozan Varol (Lewis & Clark).

2015 YCC Prizes (2)

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Published on April 14, 2015
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Mohamed Abdelaal, Alexandria University (Egypt)

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. In Tchokontio Happi v. France, the European Court of Human Rights refused the view that the French Government can rely on a lack of resources to explain why the applicant had still not been re-housed.
  2. The German Federal Constitutional Court allows Muslim teachers to wear head scarves in schools.
  3. The US Supreme Court ruled that under the Supremacy Clause an injunctive relief for violating the Medicaid Act injunctive relief is void.
  4. In Detroit, a U.S. District Judge ruled parts of Michigan’s Sex Offender Registry law unconstitutional.
  5. In Florida, an appeals court ruled that a retroactive tax law unconstitutional.
  6. A federal judge in California orders the state’s correction department to pay for inmate’s sex change.

In the News

  1. In South Korea, the Constitutional Court starts hearing arguments on anti-sex trade law.
  2. Turkey’s Constitutional Court lifts ban on Twitter and YouTube.
  3. Cambodian lawmakers approve a new electoral commission.
  4. New release: Report on the relation between Arab constitutions and corruption.
  5. The US Supreme Court is asked to seek global guidance when hearing arguments about same-sex marriage.
  6. The US Supreme Court will decide on ADA and Fourth Amendment regarding police shootings.
  7. A Wisconsin Justice filed suit challenging a state constitutional amendment.

New Scholarship

  1. James Q. Whitman, Presumption of Innocence or Presumption of Mercy?: Weighing Two Western Modes of Justice, Texas Law Review, Forthcoming (suggesting a shift away from the American culture of rights for the innocent toward a greater concern with continental-style rights for the guilty)
  2. Mathias M. Siems, Bringing in Foreign Ideas: The Quest for ‘Better Law’ in Implicit Comparative Law, 9 The Journal of Comparative Law 119 (2015) (discussing how research in comparative politics, sociology and economics can help in the quest for better law, and what limitations have to be taken into account as we cross academic disciplines)
  3. Heinz Klug, Accountability and the Role of Independent Constitutional Institutions in South Africa’s Post-Apartheid Constitutions, New York Law Review, Forthcoming (exploring the relationship between democracy and accountability in South Africa’s post-apartheid constitutional order and urges for the establishment of an institutionalized system of checks and balances)
  4. Dan Priel, The Philosophies of the Common Law and Their Implications: Common Law Divergences, Public Authority Liability, and the Future of a Common Law World, Forthcoming in The Common Law of Obligations: Divergence and Unity (Oxford: Hart Publishing, Andrew Robertson & Michael Tilbury eds., 2015) (answering the question of how we could justify the common law if it is made by unelected judges)
  5. Adam Shinar, Enabling Resistance: How Courts Facilitate Departures from the Law and Why this May Not Be a Bad Thing, 17(4) New York University Journal of Legislation & Public Policy (2014) (arguing that courts can legitimize an incentive structure to enable public officers to resist the law.)
  6. Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, in Negotiating State and Nonstate Law: The Challenges of Global and Local Legal Pluralism (Michael A. Helfand, ed. Cambridge University Press 2015) (explaining how Iraqi tribal law and Iraqi state law cooperate in solving disputes.)

Calls for Papers

  1. The Fulbright-Hungarian Academy of Sciences announces a fellowship in constitutional studies for US citizens who wish to spend from 3 up to 9 months to conduct research on Constitutional Law in Budapest at the Hungarian Academy of Sciences.
  2. Carleton University Journal of Legal Studies welcomes submissions for its new volume.
  3. The National Law School of India Review (NLSIR) is now accepting submissions for the 8th Annual Symposium on Competition Law.
  4. Boston University Law School invites submissions for the Third Annual Workshop for Corporate & Securities Litigation, which will be held Oct. 2-3, 2015, in Boston, MA.
  5. The Singaporean Centre for Asian Legal Studies Faculty of Law has issued a call for papers for a two-day workshop concerning Regulating Religion: Normativity and Change at the Intersection of Law and Religion. The workshop will be held in Singapore from 14 – 15 December 2015.

Elsewhere on Blogs

  1. Shedding light on the double aspect doctrine, BelConLawBlog
  2. Paul A. Djupe, Andrew R. Lewis & Ted G. Jelen, The freedom of religion argument could actually make gay marriage opponents more tolerant, The Washington Post Blog
  3. Lyle Denniston, Constitution Check: What do states hope to gain by going to court more often?, Constitution Daily
  4. Tunisian anti-terrorism law: A balance between security and freedoms, Middle East Monitor
  5. Designing Constitutions in Muslim Countries: What Role for Islam?, Pakistan Horizon
  6. Lyle Denniston, Constitution Check: What do states hope to gain by going to court more often?, Constitution Daily
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Published on April 13, 2015
Author:          Filed under: Developments
 

Invitation to Friends of I-CONnect: Fidelity and Change in Constitutional Interpretation

Richard Albert, Boston College Law School

Friends of I-CONnect are invited to attend an important panel discussion on “Fidelity and Change in Constitutional Interpretation” on Tuesday, April 21, at 5pm here on the campus of Boston College Law School. Dinner will be served.

The panel will feature Jack Balkin (Yale), James Fleming (BU), Larry Solum (Georgetown) and Katharine Young (BC).

This panel is generously sponsored by the Clough Center for the Study of Constitutional Democracy, which is directed by my faculty colleague Vlad Perju.

Free registration for this event is available here.

constitution-panel-flyer (2)

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Published on April 9, 2015
Author:          Filed under: Developments
 

Deadline: April 10—ICON-S 2015 Conference in New York City, July 1-3, 2015—Call for Papers & Panels—Public Law in an Uncertain World

I-CONnect is pleased to announce the Call for Papers & Panels below for the 2015 Conference of ICON-S: the International Society of Public Law.

ICON-S, a new international learned society now entering its second year, is guided by a Pro Term Executive Committee featuring many of the world’s leading scholars in the field of public law.

This edition of the ICON-S Conference will be held in New York City, on July 1-3, 2015, at the New York University School of Law. The conference will feature plenary and concurrent panels. Scholars–both senior and junior, including graduate students, as well as practitioners–are invited to submit papers and/or fully-formed panels for the conference.

Further details follow below.

 

International Society of Public Law (ICON·S)

2015 Conference

New York City, July 1-3

Call for Panels and Papers

“Public Law in an Uncertain World”

ICON-S invites submissions for papers and fully-formed panels for its 2015 Conference on “Public Law in an Uncertain World”.

The Conference will take place in New York City, on July 1-3, 2015, at the New York University School of Law.

The Conference will feature a keynote address as well as three plenary sessions on the Conference theme. A provisional program can be found here. The heart of the Conference, however, will be the two days devoted to the papers and panels selected through this Call.

ICON-S welcomes both individual papers as well as proposals for fully-formed panels. Panel proposals should include at least 3 papers by scholars who have agreed in advance to participate and should identify one or two discussants, who may also be paper presenters. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will last 1 hour and 30 minutes.

The plenary sessions are not intended to limit the subject-matter scope of individual paper submissions and fully-formed panel proposals. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, doctrinal, philosophical or practical perspective related broadly to public law, including administrative law, constitutional law, criminal law, or international law in all of their possible domestic, transnational, supranational, international and global variants related to the 2015 Conference theme. The purpose of this conference is to explore and evaluate the function and limits of public law in our uncertain world in relation to war and peace, human rights, religion, state-building, constitution-making, formal and informal institutional change, revolutionary movements, national security as well as but not limited to the economy, the environment and the challenge of new technologies.

We invite potential participants to refer to the ICON-S Mission Statement when choosing a topic.

ICON-S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer a genuine multi-disciplinary perspective from various areas of law (including civil, commercial, criminal, tax, and labor law), as well as from scholars from the humanities and the social sciences with an interest in the study of public law and (un)certainty.

We welcome submissions from both senior and junior scholars (including advanced Ph.D. students) as well as practitioners.

All submissions must be made on the ICON-S website (www.icon-society.org) by April 10, 2015. Successful applicants will be notified by May 1, 2015.

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

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Published on April 8, 2015
Author:          Filed under: Developments
 

Sovereignty of Rights vs. “Global Constitutional” Law: The Italian Constitutional Court Decision No. 238/2014

Diletta Tega, University of Bologna (Italy)

As Francesco Duranti already pointed out in his comment here at I-CONnect on 17 December 2014, Judgment no. 238, delivered on 22 October 2014, demonstrates how the Italian Constitutional Court (CC) “dialogues” with the International Court of Justice (ICJ) about the international custom on the immunity of States from the civil jurisdiction of other States.[1]

For the first time ever, the CC held unconstitutional both the legislative measures through which Italy sought to fulfill its international legal obligations as well as the statute ratifying the UN Charter insofar as it called for conformity to the ICJ’s ruling.

The CC also declared that the controversial international principle enforced by the ICJ—the customary immunity of States from the civil jurisdiction of other States for acts iure imperii even if committed in gross violation of international law— cannot become part of the national legal system, as it is prevented from doing so by Articles 2 and 24 of the Italian Constitution (the protection of inviolable rights of the person, and the right to judicial action and defense, respectively).[2]

What Duranti ironically (I suppose) describes as “dialogue”, turns out to be a harsh reprimand by the CC to the ICJ: “you made a mistake and we will fix it!”.

Read the rest of this entry…

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Published on April 8, 2015
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

Rohan Alva, Jindal Global Law School

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 U.S. Supreme Court held that it is impermissible for ‘private Medicaid providers’ to demand from states an increase in the ‘reimbursement rates’ in view of escalation in the expenditure incurred on healthcare.
  2. The Indian Supreme Court halted criminal proceedings against the nation’s former prime minister, Manmohan Singh in the case of allocation of coalmines to certain private corporations.
  3. The Israeli Supreme Court disallowed the extension of a ‘separation barrier’ on the West Bank, finding that the government should only secure the area by means that are ‘minimally disruptive’.
  4. The central government is seeking a ‘review’ of the Indian Supreme Court’s recent decision in which it had invalidated the governmental move to include ‘Jats’ within the ‘central list of the Other Backward Classes’, which would have allowed members of the community to claim ‘quota benefits’.
  5. A court in Istanbul, Turkey, acquitted over two hundred ‘military officers’ who had been accused of plotting a coup against the government, in light of the prosecution stating that ‘forged evidence’ had been the basis of the accusations. 

In the News

  1. The Maldivian Parliament passed a piece of legislation, which disqualifies individuals sentenced to imprisonment from continuing as members of any political party. This legislation is considered by some as being created to target the previous president, Mohamed Nasheed so as to exclude him from the political arena subsequent to his conviction and imprisonment.
  2. Prayuth Chan-ocha, the Prime Minister of Thailand declared that martial law will be withdrawn and instead a ‘new security order’ will be introduced.
  3. A district assembly in Tokyo, Japan, passed a statute, which recognizes same-sex relationships. Among other entitlements under the new regulation, individuals in same-sex relationships are entitled to receive ‘partnership papers’ which will treat the relationship on par with marriage.
  4. The Indian President assented to the ‘re-promulgation’ of an ordinance, which makes changes to the law regulating land acquisition, after the government was unsuccessful in seeking the passage of the legislative amendments in Parliament.
  5. In Arkansas, U.S.A., the House of Representatives passed into law a bill, which permits business entities to protect the ‘religious freedom of businesses’. Critics argue that the bill is on a weak footing, with the state governor declaring that he is disinclined to assent to the bill in its current form.

New Scholarship

  1. David Johnston (editor) The Cambridge Companion to Roman Law (Cambridge University Press, 2015) (a volume of essays in which the authors explore different themes such as the unique characteristics of Roman public and private law, and the evolution of Roman law principles)
  2. Richard Albert, Constitutional Amendment by Stealth, 60 McGill Law Journal (forthcoming 2015) (arguing that the difficulty of formal amendment has given rise to “stealth” informal amendments that occur when political actors seek intentionally to create a constitutional convention)
  3. Ignacio N. Cofone and Stephen Michel, Fixing Popular Participation in Constitution-Making, Rotterdam Institute of Law and Economics Working Paper, 2015 (positing that a differential majority requirement is usually adopted when a constitution is to be agreed upon by a drafting body and when it is to be ‘ratified’, and proposing that identical majority requirements should be applied at all stages at which a constitution is to be voted on)
  4. Paul R. Williams, Abigail J. Avoryie and Carlie J. Armstrong, Earned Sovereignty Revisited: Creating a Strategic Framework for Managing Self-Determination Based Conflicts, 21 ILSA Journal of International and Comparative Law 1 ( 2015), (arguing that traditional methods of responding to self-determination movements are not sufficiently holistic measures, and proposing for the setting up of a ‘strategic framework’ which permits all the entities involved to resolve claims in a peaceful manner)
  5. Robert Blackburn, Enacting a Written Constitution for the United Kingdom, 36 Statute Law Review 1 (2015) (exploring some of the considerations which weigh in favour of the U.K. possessing a written constitution, and assessing important factors which have to be considered while framing a constitution)
  6. Madis Ernits, The Principle of Equality in the Estonian Constitution: A Systematic Perspective, 10 European Constitutional Law Review 444 (2014) (analysing the progress and development of the constitutional ideal of equality in Estonia by evaluating the jurisprudence of the Supreme Court on equal rights.)

Elsewhere on the Web

  1. Akhil Reed Amar, Give the crew the key, CNN
  2. Stefan Graziadei, Judges de-escalate heated Belgian language conflict, BelCon Law Blog
  3. Umakanth Varottil, Gender Diversity on Corporate Boards: The Need to Move Beyond Rhetoric, IndiaCorp Law
  4. Paul Scott, The Benefits Cap and the Enforcement of Unincorporated Human Rights Treaties, Oxford Human Rights Hub
  5. David M. Crane, The Rules Have Not Changed Regarding Armed Conflict, Jurist- Academic Commentary

Call for Papers

  1. Papers are invited by LUISS University Press for a special volume on ‘Courts facing the essential elements of religion’. Entries for this volume are to be submitted by the 1st of June, 2015.
  2. A call for papers has been issued by the Human Rights Centre at Ghent University for an international conference on ‘The Global Challenge of Human Rights Integration: Towards a Users’ Perspective’. Abstracts of papers should be sent in by the 15th of May, 2015.
  3. Centre of International Law and Human Rights at the University of Lancaster invites papers for a conference on ‘Hybrid Warfare and Minority Rights’. Single page abstracts should be submitted by the 1st of May, 2015.
  4. Abstracts are invited for a conference on ‘The state at Crossroads: Challenging the testing times in international society in the 21st Century’ organised by the Charlemagne Institute for European Studies. All abstracts are due by the 18th of May, 2015.
  5. The Siddhartha Legal Research Society invites submissions to the Indian Journal of Legal Research and applications to its editorial board.
  6. International Law News seeks articles on the subject of ‘Border Disputes: Where Do They Arise and How Do We Resolve Them?’ All articles are to be submitted by the 9th of June, 2015.
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Published on April 6, 2015
Author:          Filed under: Uncategorized
 

Kuwait’s Political Adolescence: The Controversies of Constitutional Reform

Dr. Fatima AlMatar, Kuwait University, Department of Public Law

The political situation of Kuwait today resembles 17th century Britain, where the Amir[1] still has the power to dissolve parliament whenever he pleases so long as he provides a reason for doing so, and so long as the parliament is not dissolved again on the same grounds (article 107).

At first glance Kuwait seems a unique case in the sense that it is the only country in the GCC where a form of a democracy is practiced via a written constitution and an elected parliament. A closer look reveals an ostensible democracy. Coined by Lewin and Lippitt in 1938, the term describes a model of leadership where a thin layer of democracy is implemented to mask coercion under the guise of participatory group processes.

Kuwait’s current constitution, written in 1962, is not the country’s first attempt at democracy.

Read the rest of this entry…

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Published on April 3, 2015
Author:          Filed under: Analysis, New Voices
 

Does Hong Kong Need a Mayor?

Alvin Y.H. Cheung, Visiting Scholar, U.S.-Asia Law Institute, NYU School of Law

It has been known for about two thousand years that it is impossible for one person to serve two masters. Unfortunately, this lesson was lost on the Drafting Committee of Hong Kong’s Basic Law. Under current arrangements, Hong Kong’s Chief Executive is selected by an “Election Committee” of 1,200–the composition of which disproportionately favours pro-Beijing interests–and appointed by the Central Government in Beijing.

Hong Kongers have been promised that they will eventually be able to elect their Chief Executive by universal suffrage.[1]  However, Beijing has made clear that its version of “universal suffrage” involves the electorate rubber-stamping a decision made by a Nominating Committee–in essence, the Election Committee by another name.[2]  In a similar vein, current Chief Executive CY Leung suggested that any electoral system is “genuine universal suffrage as long as it is in accordance with their constitution, system and electoral law”–an “Orwellian” definition that would allow any country to lay claim to having “universal suffrage.”

Beijing’s refusal to relinquish its stranglehold over the selection of Hong Kong’s Chief Executive has its roots in that office’s dual mandate, and in China’s approach to devolution. As Alyssa S. King and I argue in a forthcoming paper, the office of Chief Executive suffers from two sets of poor historical precedent. The office’s extensive powers are based on those of British colonial governors–a model that is ultimately reliant on central governmental goodwill, and which remains vulnerable to demands for greater regional autonomy. Yet the Chief Executive is also one of Beijing’s representatives in Hong Kong–and Beijing’s track record on local cadres maintaining regional autonomy is far from reassuring. For instance, Beijing’s insistence that ethnic-minority cadres in autonomous regions be members of the national Communist Party has significantly undermined their effectiveness in representing their ethnic groups.[3] The limits on Hong Kong electoral reform reflect a similar strategy of keeping local officials on a tight leash.

One solution to the impasse is to bifurcate the existing office of Chief Executive.

Read the rest of this entry…

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Published on April 1, 2015
Author:          Filed under: Analysis