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I·CONnect

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

Czech Constitutional Court: Czech Law Forbidding Registered Partners to Adopt Children is Unconstitutional. But is the Judgment *Really* Good News for LGBTQ?

–Zdeněk Červínek (Doctoral Researcher, Department of Constitutional Law, Palacký University, School of Law, Olomouc, the Czech Republic); Martin Kopa (Assistant Professor, Department of Constitutional Law, Palacký University, School of Law, Olomouc, the Czech Republic)

As Rohan Alva noted earlier here on I-CONnect, the plenum of the Czech Constitutional Court (“the Court”) granted the motion of the Prague Municipal Court for the annulment of Section 13 para. 2 of the Act on Registered Partnership (“the Act”), which precluded the adoption of a child by persons living in a registered partnership.

In the Court’s opinion, this provision violated human dignity, the right to private life and the prohibition of discrimination. The provision read, as follows: “Existing partnership precludes any partner from becoming an adoptive parent to a child.”

The crux of the case was that the Civil Code allows adoption by a single person in exceptional circumstances. But the Act explicitly precluded that such a person live in a registered partnership. For that reason, the Court concluded, the law led to unreasonable consequences. It disadvantaged individuals entering registered partnership by taking the possibility to adopt a child away from them.

Protection of Human Dignity–Too High or Too Low a Card for the Protection of LGBTQ Rights?

The judgment attracted attention not only because of the matter it dealt with, but also for the inconsistencies that stem from the Court’s reasoning.

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Published on July 29, 2016
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Was the Brexit Referendum Democratic?

Cross-posted with permission from the UK Constitutional Law Association Blog. The original post appears here.

Stephen Tierney, University of Edinburgh

The past three weeks have seen a steady backlash against the referendum. It is understandable that many don’t like the outcome, after all 48% voted for Remain. But beyond disagreeing with the decision to leave the European Union, was the process so faulty that it can reasonably be declared illegitimate? I would argue no.

I make an immediate exception for those who, as a matter of principle, oppose the use of referendums. The appropriate balance between representative and direct democracy is both delicate and contested and it can be validly argued that referendums have no place in a properly functioning parliamentary democracy. But if the principle of using referendums in constitutional decision-making is accepted, as it widely is, then we must assess the Brexit referendum by its mode of organisation and the legality of its process. By this measure it is hard not to conclude that the referendum accorded with international standards for direct democracy, that it was conducted in accordance with law and that it was effectively regulated. On this basis I argue that the result is one which citizens should agree to, even if it is not one they agree with. The inevitable, if unpalatable, conclusion is that the outcome was lawfully arrived at and should be faithfully implemented.

Objections to Referendum Democracy

Two main concerns with the very idea of referendum democracy are relevant to the debate. One is that referendums, by definition, lend themselves to manipulation by the elites who organise the vote. A second is that referendums have an in-built tendency merely to aggregate pre-formed opinions rather than to foster meaningful deliberation.

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Published on July 28, 2016
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Developments in Romanian Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the third installment in our Year-in-Review series. We invite scholars from around the world to prepare similar reports on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy and the Slovak Republic. –Richard Albert]

—Simina Elena Tănăsescu, PhD, Professor at the University of Bucharest and Bianca Selejan-Guțan, PhD, Professor at the “Lucian Blaga” University of Sibiu

The 904 decisions delivered by the Romanian Constitutional Court in 2015 represent only a slight increase in its caseload[1] but invalidations almost doubled over the same period.[2]

There are several major subject areas from the Court’s 2015 term. Cases focused on reforming the Romanian political system, for instance involving the freedom of association in political parties, postal voting for expatriated Romanians and parliamentary immunity. The Court also decided important civil liberty cases concerning the right to a fair trial as well as free access to justice in civil and criminal procedures. In addition, the Court presided over cases regarding the protection of , including privacy (particularly with regard to cyber-security) and social rights.

Overall, the Romanian Constitutional Court continued to emphasize the importance of protecting fundamental rights. And this occurred in cases brought by individuals via the ordinary courts (referrals of unconstitutionality) and cases initiated by specific public authorities (institutional litigation).

Since most decisions below are not available in English yet,[3] we have presented some of them in a rather detailed manner.

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Published on July 27, 2016
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What’s New in Public Law

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

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

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

Developments in Constitutional Courts

  1. The Indian Supreme Court ruled that access to justice is a fundamental right of citizens protected by Article 14 and Article 21 of the Indian Constitution.
  2. The Colombian Constitutional Court ordered the national government to conduct a plebiscite for the approval of the peace accord (bilateral cease-fire agreement) between the Revolutionary Armed Forces of Colombia and the government.
  3. A five-judge bench of the Indian Supreme Court announced that it will decide whether regional courts of appeal must be established to facilitate reduction of case backlog in the Indian courts.
  4. The Obama administration requested that the U.S. Supreme Court rehear an important immigration case once the vacancy caused by Justice Scalia’s death is filled.
  5. The Romanian Constitutional Court held that the popular constitutional amendment initiative on recognizing as “family” only the union between a man and a woman is constitutional [Submitted by Bianca Gutan, Professor of Constitutional Law and Human Rights Law, University of Sibiu, Faculty of Law].

In the News

  1. Poland amended the recently introduced law on the constitutional court framework by removing the requirement for a two-thirds majority in order for a judgment to be valid.
  2. The Israeli Parliament passed a law that allows it to impeach legislators for stirring racism or supporting armed struggle against the State.
  3. The Union Government of India through its cabinet decision approved the Transgender Persons (Protection of Rights) Bill 2016.
  4. Ireland will hold a constitutional referendum to decide whether Irish citizens living outside the country should be eligible to vote in presidential elections.
  5. A Muslim women’s rights organization in India is training 30 women to be Qazis (Judges), who administer the civil code and personal laws of the Muslim community, with studies in quranic law, constitutional law and gender rights, in response to the mounting insistence for more women representation in such posts.

New Scholarship

  1. Julius Yam, The Role of Courts in Hybrid Regimes and a Reconceptualisation of Separation of Powers: The Case of Filibuster in Hong Kong, 17 Australian Journal of Asian Law 1 (2016) (explaining how the judiciary of Hong Kong should alter its current approach to constitutional interpretation in light of Hong Kong’s constitutional order, hybrid government regime and political reality)
  2. Manoj Mate, Globalization, Rights, and Judicial Review in the Supreme Court of India, 25 Washington International Law Journal 643 (2016) (examining the evolving role of the Supreme Court of India in an era of globalization by examining the Court’s decision-making in rights-based challenges to economic liberalization, privatization, and development policies over the past three decades).
  3. Chimène I. Keitner, Authority and Dialogue: State and Official Immunity in Domestic and International Courts, in Concepts of International Law in Europe and the United States, Chiara Giorgetti and Guglielmo Verdirame (eds.) (forthcoming) (discussing the ongoing conversation about norms of state and official immunity among domestic and international courts).
  4. Paul P. Craig, Brexit: A Drama in Six Acts, European Law Review (2016) (analysing the course of Brexit from the Bloomberg speech through to the referendum and beyond)
  5. Ittai Bar-Siman-Tov, Temporary Legislation, Better Regulation and Experimentalist Governance: An Empirical Study (2016) (presenting the findings of an extensive multi-method empirical study that explored the relationship between temporary legislation, better regulation, and experimentalist governance)
  6. Asem Khalil, Impulses from the Arab Spring on the Palestinian State-Building Process, in Constitutionalism, Human Rights, and Islam after the Arab Spring, Rainer Grote and Tilmann J. Roder (eds.) (2016) (assessing the Arab Spring’s impact on the Palestinians, in particular, in their quest for statehood and their state-building efforts, with particular emphasis on relevant constitutional law and institutions)
  7. Anna Bryson and Kieran McEvoy, Women Lawyers and the Struggle for Change in Conflict and Transition, Australian Feminist Law Journal (2016) (examining the particular experiences of female “cause lawyers” in conflicted and transitional societies)

Calls for Papers and Announcements

  1. The Friedrich-Schiller-University Jena, Faculty of Law is inviting applications for the post of a full-time and permanent Lecturer in English Common Law beginning from October 1, 2016. The successful candidate will teach the different areas of English common law within the degree course “International Legal Studies.” The successful candidate will be appointed for a limited period of two years with the possibility of permanent employment at a later stage. Applications should be submitted by August 12, 2016. For more information, please visit http://www.rewi.uni-jena.de.
  2. Argumenta Journal of Law is accepting submissions for its upcoming edition. Interested authors must send their papers to argumenta@uenp.edu.br. Authors must submit original texts of Law Science and Humanities with the purpose of spreading their reflections of topics related to “Justice and Social Exclusion.”
  3. The Jus Post Bellum Project is calling for research papers for the project conference on “Jus Post Bellum and the Justice of Peace” on September 29-30, 2016 in The Hague. Submissions must be sent to j.m.iverson@law.leidenuniv.nl by August 5, 2016 with an abstract of the paper and the author’s curriculum vitae.
  4. The City University of New York Law Review is inviting submissions for Volume 20, Issue 1. The journal is committed to promoting social justice scholarship and invites submissions related to their social justice mission. The deadline for submitting manuscripts is August 1, 2016.
  5. The AALS Section on Internet and Computer Law is inviting papers on “Artificial Intelligence, the Internet of Things and Social Values” for its meeting on January 5, 2017. Interested authors must send the abstracts which should summarize their papers in roughly 1000 words to derekbambauer@email.arizona.edu before September 15, 2016.
  6. The Goettingen Journal of International Law has released its latest issue – Volume 7, Issue 1. This special issue is on the “Exercise of Public Authority by International Organizations.” Contributions to this issue were made by scholars who participated in workshops on this topic at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg.
  7. Melbourne Law School (MLS) at the University of Melbourne invites applications for two Postdoctoral Fellowships to participate in Professor Adrienne Stone’s Kathleen Fitzpatrick Australian Research Council Laureate Fellowship program on “Balancing Diversity and Social Cohesion in Democratic Constitutions.”

Elsewhere Online

  1. Wojciech Sadurski and Maximilian Steinbeis, What is Going on in Poland is an Attack against Democracy, Verfassungsblog
  2. Andrew Murray, AG Saugmandsgaard Øe on Mass Data Retention: No Clear Victory for Privacy Rights, Verfassungsblog
  3. Rajeev Dhavan, Handbook of the Indian Constitution review: A Site of Struggle, The Indian Express
  4. Ozan Varol, Turkey’s Reichstag Fire, The Huffington Post
  5. Chris Stephen, Libya’s latest draft constitution: Concise summary, ConstitutionNet
  6. Marsolo, How the Judiciary Contributes to the Growth of Government, American Thinker
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Published on July 25, 2016
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Repression in Bahrain: The End of Any Hope for an Effective Arab Court of Human Rights?

Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law; Visiting Scholar at iCourts, University of Copenhagen

While the world’s eyes were on Nice and Turkey last weekend, Sunday 17 July brought more bad news from farther south: in Bahrain the ruling Al Khalifa monarchical regime had dissolved the country’s largest opposition group, Al Wefaq. A final rending of the increasingly threadbare pretence at reform, initiated after the regime’s brutal response to the ‘Pearl uprising’ of 2011, the move is the coup de grâce of a month-long crackdown that has removed any remaining outlet for channelling the grievances of the many citizens and grassroots activists seeking real reform in this small kingdom. As Brian Dooley puts it:

Meaningful avenues for people to air grievances are now essentially closed. Can you organize a political group to raise concerns with the regime? No. Tweet peaceful criticism of the government? No. Make a speech calling for reform? No. Visit the United Nations in Geneva to ask for international help? Go to U.S. universities like Stanford or Columbia to promote free speech and religious tolerance? Tear a picture of the king? Give medical help to injured protestors? No, no, no, no.[1]

Beyond the central plight of ordinary people struggling under the stifling control of a tiny élite, this turn toward starker repression also matters because Bahrain is the planned seat of the Arab Court of Human Rights, which is reportedly close to establishment.[2]

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Published on July 22, 2016
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Developments in Slovak Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the second installment in our Year-in-Review series, which began earlier this year with the publication of the 2015 year-in-review of developments in Italian Constitutional Law, prepared by Marta Cartabia, Pietro Faraguna, Michele Massa and Diletta Tega. We invite scholars from around the world to prepare similar reports on their own jurisdictions for publication on I-CONnect. We are excited about this series, and we thank Tomáš Ľalík, Kamil Baraník and Simon Drudga for their report on Slovak constitutional law developments in 2015. –Richard Albert]

Doc. Tomáš Ľalík (Comenius University), Dr. Kamil Baraník (Comenius University), and Simon Drudga (Nagoya University)

Background on the Slovak Constitutional Court

The Constitutional Court of the Slovak Republic (CC), with its 13 justices appointed for non-renewable 12-year terms, was established according to the Kelsenian idea of constitutional review conducted by a specialized judicial body.

The CC wields powers in 20 different types of proceedings, and decides cases either in the Plenum or in one of its four three-member Senates.

In 2015, the Court’s docket was flooded by 16,867 applications, of which 15,266 were addressed. The CC decided 90 plenary cases on merits and delivered a further 2157 meritorious judgments in the Senates. This translates to 1388 cases assigned, on average, to a single judge. Despite this backlog and the current understaffed bench (see more below), the Court managed to keep the average length of proceedings to nine months.[1]

The case law of the CC is, regrettably, relatively unknown internationally. This has been exacerbated by the fact that the CC’s judgment summaries have not been continuously translated into English since 2011. The following I·CONnect report attempts to alleviate this informational lacuna.

In contrast to the benchmark year-in-review report of our Italian colleagues, this report introduces the Court’s 2015 seminal judgments to the international audience at quite some length.

This report divides the CC’s 2015 decisions into three categories.

The first focuses on various separation of powers disputes. Notably, this subject involves many aspects of the judiciary, including the powers of the CC itself. Perhaps the most important issue, affecting the CC significantly, involves an ongoing controversy over its composition. The Court has not been at its full capacity of 13 members since 2014. This was further intensified as one justice’s term expired in 2016. Thus, currently there are only ten justices running its bench. The CC has already had two opportunities to address this issue in the recent period, but the matter has remained unresolved for now. Besides that, the Court reviewed the constitutionality of a statutory freezing of judicial salaries in 2015, and also scrutinized the constitutionality of changes in the Judicial Council’s composition.

The second category analyses cases dealing with fundamental rights and freedoms. The “Data Retention” ruling occupies a place of particular importance. The ruling declared unconstitutional the national statutory provisions transposing the EU directive. The Court was in this case undoubtedly influenced by the Court of Justice of the European Union’s decision in the Digital Rights Ireland case. Furthermore, the CC’s rights and freedoms decision-making activity revolves around contentious limitations of social rights. In that respect, in 2015 the CC considered the constitutionality of obligatory work in exchange for allowance in material distress. Another important case involved “tax licences” as minimum tax paid by entrepreneurs/legal entities regardless of their profit or loss in a given year.

The third category focuses on electoral disputes, singling out one representative decision of the last year. In this case many persons, on very short notice before the regional elections, relocated their residencies in order to participate in the ballot. In that way they could influence the entire outcome of the elections. This has been a quite regular and disruptive electoral practice that has raised a vast number of electoral disputes at the local level of governance. The CC seized this opportunity and finally established a legal test of constitutionality for future similar manipulations. The case aptly illustrates the cut-and-thrust of the CC workload in this subject area.

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Published on July 20, 2016
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What’s New in 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 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 Supreme Court of El Salvador struck down the amnesty law of 1993, opening the way for prosecution of those associated with various war crimes during the country’s civil war.
  2. The European Court of Justice released an advisory opinion stating that Asma Bougnaoui, a French Muslim woman who lost her job in 2009 for wearing a head scarf, was unlawfully discriminated against.
  3. Turkish police apprehended Alparslan Altan, a member of the country’s Constitutional Court and the most senior judicial figure among scores detained so far following an attempted military coup.
  4. South African President Jacob Zuma appointed two Judges of the Constitutional Court.
  5. U. S. President Barack Obama expressed concern about the state of democracy in Poland, publicly rebuking the government.
  6. The Bahrain High Civil Court ordered al-Wefaq, the main Shiite opposition group in the country, to be dissolved.

In the News

  1. Israeli lawmakers passed a controversial law increasing regulation on Israeli human rights organizations.
  2. The U.S.Department of Defense announced the transfer of two Guantanamo detainees to Serbia.
  3. The Chairperson of the House Committee on Governance in Liberia announced that no referendum will be held on the 25 propositions advanced during the Gbarnga Conference.
  4. Japan’s Prime Minister Shinzo Abe’s ruling coalition put in a strong showing in Japan’s upper-house election, bolstering his hand in achieving his long-held goal of revising the country’s constitution.
  5. Former Australian Prime Minister Kevin Rudd officially requested the support of his country’s new government to back a bid for the top job at the United Nations.

New Scholarship

  1. Nikos Skoutaris, From Britain and Ireland to Cyprus: Accommodating ‘Divided Islands’ in the EU Political and Legal Order, EUI Working Paper AEL 2016/02(2016) (examining two pathways for Scotland and Northern Ireland to remain in the EU)
  2. Andrew Friedman, States, Countries and People: Who Should the Second Chamber Speak for? (2016) (examining what factors make up worldwide second chamber design, including sub-national units, population and more traditional cleavages such as ethnolinguistic groupings)
  3. Nandini Ramanujam and Stephanie Chow, Towards a Human Dignity Based Approach to Food Security: Lessons from China and India, 11 Frontiers of Law in China 243 (2016) (analyzing the comparative experiences of tackling food security in China and India and adopting an inter-disciplinary approach, which melds legal, economic, and human perspectives to food security)
  4. Richard S. Kay, Constitutional Change and Wade’s Ultimate Political Fact, University of Queensland Law Journal (forthcoming) (reviewingW.R. Wade’s classic article on parliamentary sovereignty in the United Kingdom, The Basis of Legal Sovereignty, published in 1955)
  5. Colin J. Beck, The Comparative Method in Practice: Case Selection and the Social Science Revolution, Social Science History (forthcoming) (examining whether comparative methodology has, in fact, institutionalized within the social sciences using evidence from the entire corpus of comparative studies of revolution published from 1970 to 2009)
  6. Erin Daly and James May, Global Environmental Constitutionalism: A Rights-Based Primer for Effective Strategies, in Decision Making in Environmental Law, LeRoy C. Paddock, Robert L. Glicksman, and Nicholas S. Bryner, eds. (2016) (providing an introduction to and overview of the field of global environmental constitutionalism)
  7. Iordanis M. Eleftheriadia and Vasilios Vyttas, Creating a Culture of Risk in the Greek Public Administration. A Brief Retrospect on the Memorandum Era, International Journal of Business and Economic Sciences Applied Research (2016) (highlighting risk characteristics and presentation of basic management principles that should govern the operation of public service organizations)

Calls for Papers and Announcements

  1. The Vienna Journal on International Constitutional Law (ICL Journal) will host a conference on the concept of International Constitutional Law on September 23, 2016 at Vienna University of Economics and Business (WU). Keynote lectures will be presented by Frederick Schauer and Alexander Somek. To participate please register by September 16, 2016 with the conference office at fegerl@wu.ac.at.
  2. The European Journal of International Law invites papers for a symposium on “International Commissions of Inquiry: What Difference Do They Make?” Proposals should be send to ejilcommissionsofinquiry@gmail.com by September 19, 2016.
  3. Palestine Works invites candidates to register for the Young Palestinian Lawyers Fellowship Conference, as well as to submit abstracts for competition in the Writing Competition & Workshop on “Rebuilding the Palestinian National Movement: Legal and Political Considerations.” The Conference will take place on August 1-5, 2016 at Birzeit University in Birzeit, Palestine.
  4. Lexxion Publisher, King’s College London Centre of European Union Law, and The George Washington University Law School will hold a symposium, Opening Transatlantic Procurement Markets, on September 19, 2016, in London. Abstracts on relevant subjects are welcome on a rolling basis.
  5. The University of Washington School of Law’s Center for Advanced Study & Research on Innovation Policy (CASRIP) will host the 2016 Global Innovation Law Summit on July 22, 2016.

Elsewhere Online

  1. Ozan Varol, Irony and Tragedy in Turkey’s Coup Attempt, The Huffington Post
  2. Tomasz Tadeusz Koncewicz, Farewell to the Polish Constitutional Court, Verfassungsblog
  3. Mohamed Abdelaal, Egypt’s New Cybercrime Law: Another Legislative Failure, Jurist
  4. Jemy Gatdula, Philippine Constitution needs amendments on a range of issues, ConstitutionNet
  5. Shawn Marie Boyne, “No” Finally Means “No” in Germany, Comparative Law Prof Blog
  6. William Partlett, Colombia, New Constitutionalism, and History, Blog of the IACL, AIDC
  7. Raise Cajhaila, Emboldening a Country in Distress – The South African Constitutional Court on Nkandla, Blog of the IACL, AIDC
  8. Manuel José Cepeda Espinosa, The peace process and the Constitution: Constitution making as peace making?, Blog of the IACL, AIDC
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Published on July 18, 2016
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A Faustian Deal? (I·CON 14, Issue 2: Editorial)

J. H. H. Weiler, Co-Editor-in-Chief, I·CON; President, European University Institute

After a relatively short-lived honeymoon, Ms Merkel is under attack within Germany, internationally and not least in Turkey itself for the deal struck with Mr Erdogan to stem the influx of refugees and asylum seekers to Europe. Degrading, humiliating, illegal are some of the kinder things being said. Particularly galling to many is the near silence of Ms Merkel in the face of Mr Erdogan’s alarming crackdown on academics, journalists and others, which has been widely reported and condemned. I am not insensitive to all of these concerns but I am not willing so easily to join the choir of condemnation. As regards Ms Merkel, one cannot overstate the admirable courage and  humanity  which she (and her country men and women) showed in not turning their back to one of the most wrenching humanitarian disasters of our epoch – all the more admirable when set against an ugly rise of atavism and xenophobia throughout Europe. To some her actions were reckless – I would describe them as noble. Italy and Greece should join her on the podium. Yes, there is much to criticize in the Turkey deal, but let us also not lose sight of the fact that the deal, with all its blemishes, was in no small measure the result of the unwillingness of most Member States to engage in any meaningful burden sharing.

Mr Erdogan is an enigma. His early years in power were no less than spectacular, not only in economic management, but historically for once and for all eliminating the army from Turkish politics – the repeated military coups are now a distant memory. He also seemed to chart a way which would respect the democratic wishes of a majority of Turks to acknowledge and give expression to the religious identity of Turkey without compromising democracy itself. Sure, it enraged those in Turkey wedded to its historic laic status quo, but his move was not out of line with many a non-laic state in Europe. And for a while it seemed that he even achieved a peaceful resolution to the Kurdish problem. So why, at the height of his power and prestige, the turn to authoritarianism? Explanations abound, but let us leave that for another occasion. Without in any way minimizing the deep and justified concern created by recent events in Turkey, there is one fact about Erdogan and his fellow country men and women which in my view is seriously underplayed: the generosity of spirit of the Turkish in stating simply “these are our brothers and sisters” and accepting close to three million refugees. Turkey falls short of many important international human rights standard and the record of welcome is far from perfect. But what is the point of our own admirable standards if we keep the gates closed?

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Published on July 14, 2016
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I·CON’s Current Issue (Table of Contents)

I·CON

 Volume 14 Issue 2

 Table of Contents

Editorial

Articles

N.W. Barber, Why entrench?

Chien-Chih Lin, Constitutions and courts in Chinese authoritarian regimes: China and pre-democratic Taiwan in comparison

Constitutional Identity

Antoni Abat i Ninet and James A. Gardner, Distinctive identity claims in federal systems: Judicial policing of subnational variance

Monika Polzin, Constitutional identity, unconstitutional amendments and the idea of constituent power: The development of the doctrine of constitutional identity in German constitutional law

Symposium: The Legacy of Mauro Cappelletti

J.H.H. Weiler, The legacy of Mauro Cappelletti: A preface

Sabino Cassese, In praise of Mauro Cappelletti

Loïc Azoulai, “Integration through law” and us

Marta Cartabia, Mauro Cappelletti: One of the “precious few” of our generation

Sara Benvenuti, The referral mechanism and the role of ordinary judges: Cappelletti and beyond

Marijn van der Sluis, EU law for a new generation?

Hanna Eklund, Judicial review and social progress in the work of Mauro Cappelletti and today

Marta Infantino, Integration through comparative private law: Four lessons from Cappelletti

Critical Review of Governance

 Mathilde Cohen, On the linguistic design of multinational courts—The French capture

Rivka Weill, Resurrecting Legislation

Book Review

Umut Ȍzsu. Formalizing Displacement: International Law and Population Transfers (Stephen C. Neff)

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Published on July 13, 2016
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What’s New in Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

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 Thailand approved a ban on discussion of the country’s draft constitution ahead of a referendum on August 7, while the military government set up security centers in every province to ensure that electoral fraud or malpractice does not occur.
  2. The President of the Slovak Republic Andrej Kiska refused again to appoint three judges to the Constitutional Court.
  3. The Supreme Court of India held that farmers cannot be evicted from leased land after expiry period; ruled that army and the paramilitary cannot use excessive force during counter-insurgency operations in disturbed areas, with its personnel triable in ordinary criminal courts; warned lower court judges against judicial overreach; and ordered the central government and search engine providers Google, Yahoo, and Microsoft to find a technical solution to prevent ads displaying pre-natal sex selection tests.
  4. The Supreme Court of Canada created new guidelines on time limits for criminal trials to curb institutional delay.
  5. The Constitutional Court of Romania ruled that mayors who are handed suspended prison sentences for corruption cannot continue to serve in the office.
  6. The Constitutional Court of St. Marten struck down the Integrity Chamber Law.
  7. The Constitutional Court of Azerbaijan recognized the results of a repeat parliamentary election held in Agdash constituency.

In the News

  1. The Czech government rejected the President’s call for a referendum on EU, NATO.
  2. Japan held its Upper House election.
  3. Gambia and Tanzania outlawed the practice of child marriage.
  4. Britain lifted a ban on women serving in close combat units in the military.
  5. Poland’s ruling party confirmed that work on a new constitution has started, and amended restrictions on the Constitutional Tribunal again before the NATO summit in Warsaw.
  6. A Ugandan MP urged amending constitution to abolish the presidential age limit.
  7. Hungary set the date for referendum on EU mandatory refugee quotas.

New Scholarship

  1. Mohamed Abdelaal, The Paradox of Freedom of Religion in Post-Revolutionary Egypt, in Religious Freedom and Religious Pluralism in Africa: Prospects and Limitations, Pieter Coertzen, M. Christian Green, and Len Hansen eds. (2016) (highlighting the puzzle of the political significance that Article 2 of the Constitution, which lists the principles of the Islamic sharia as the main source of legislation)
  2. Alex Schwartz and Melanie Janelle Murchison, Judicial Independence and Impartiality in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina, 50 Law & Society Review 4 (forthcoming) (examining influence of ethno-nationalism on judicial behavior and the extent to which variation in judicial tenure amplifies or lessens this influence)
  3. Giuseppe Martinico, Constitutionalism, Resistance, and Openness: Comparative Law Reflections on Constitutionalism in Postnational Governance, Yearbook of European Law (2016) (arguing that comparative law analysis of constitutions can help overcome the false dichotomy between pluralism and constitutionalism in contemporary literature on the subject)
  4. Christian Bjørnskov and Stefan Voigt, The Architecture of Emergency Constitutions (2016) (examining “emergency constitutions” for distribution patterns in the design of additional emergency powers and discerning “typical” models emergency constitutions)
  5. Marie-Luce Paris, The Comparative Method in Legal Research: The Art of Justifying Choices, in Legal Research Methods: Principles and Practicalities, Laura Cahillane and Jennifer Schweppe, eds. (forthcoming 2016) (examining the main conceptual tools on how the issue of method in comparative law has been approached by bringing to the fore the justificatory argument)
  6. Martijn van den Brink, What’s in a Name Case? Some Lessons for the Debate Over the Free Movement of Same-Sex Couples within the EU, German Law Journal (2016) (engaging the debate on the free movement of same-sex couples and exploring the lessons to be learned from the case law on the recognition of names in the varied Members States of the EU)
  7. Mikolaj Barczentewicz, Judicial Duty Not to Apply EU Law (2016) (exploring the limits to incorporation of European Union law in the United Kingdom and arguing that UK courts are sometimes under a duty not to apply EU law)
  8. Daniel Friedmann, The Purse and the Sword (2016) (critically assessing Israel’s
    legal system in the context of its politics, history, and the forces that shape its society on a background of major contentious issues facing modern Israel today)
  9. Amy Raub, Adele Cassola, Isabel Latz and Jody Heymann, Protections of Equal Rights Across Sexual Orientation and Gender Identity: An Analysis of 193 National Constitutions, 28 Yale Journal of Law and Feminism 149 (2016) (providing a quantitative analysis of constitutional protections for equal rights based on sexual orientation and gender identity across the spheres of general equality and discrimination, employment and marriage rights)
  10. Fred O. Smith Jr., Undemocratic Restraint (2016) (arguing that constitutionalization of prudential limits reduces dialogue among branches of government, and exacerbates some of the most troubling aspects of countermajoritarian judicial supremacy)
  11. Michael D. Ramsey, Evading the Treaty Power?: The Constitutionality of Nonbinding Agreements, 11 Florida International University Law Review 371 (2016) (assessing the nonbinding character of international agreements made or entered into by presidents on their own authority contrasted with the constitutional checks on the treaty-making power)
  12. Richard Bellamy, A European Republic of Sovereign States: Sovereignty, Republicanism and the EU, European Journal of Political Thought (forthcoming) (proposing an alternative vision of the EU as a republican association of sovereign states that allows sovereign states and their peoples to mutually regulate their external sovereignty in non-dominating ways)
  13. Gregory Voss and Céline Castets-Renard, Proposal for an International Taxonomy on the Various Forms of the ‘Right to Be Forgotten’: A Study on the Convergence of Norms, 14 Colorado Technology Law Journal 281 (2016) (examining the context, various forms internationally, and their potential convergence of the “right to be forgotten,” while at the same time proposing it a new analytical grid)
  14. Alexis Albarian and Olivier Moréteau eds., Comparative Law and … (2016) (gathering papers presented at the Juris Diversitas Annual Conference 2014 and revealing the essence of Juris Diversitas as an international, interdisciplinary community composed of comparative law scholars who explore the interaction of the law with all branches of human and social sciences)

Calls for Papers and Announcements

  1. Tilburg Law Review (TiLR) invites article submissions for its fall 2017 special issue on “Translating Law.” The issue is prepared in the legacy of Willem Witteveen, a professor of jurisprudence at Tilburg Law School who tragically passed away in the MH17 disaster. The deadline for submissions is December 15, 2016.
  2. The University of Strathclyde PGR Law Conference committee seeks submissions for its second annual conference on “Visualizing the Law,” to be held on October 27-28 in Glasgow, Scotland. The deadline for abstracts is August 31, 2016.
  3. The Brazilian Journal of Law (Revista Brasileira de Direito) is accepting submissions for its second edition this year on the following themes: (a) Fundamental Rights, Constitutional Jurisdiction and Democracy; (b) Ethics, Citizenship and Sustainability; (c) Law and new technologies in the information society; (d) Studies about legal theory and dogmatics in the XXI century. The deadline for submissions is August 20, 2016, to be sent by email to rbdimed@gmail.com.
  4. Faulkner Law Review at the Thomas Goode Jones School of Law at Faulkner University invites proposals for its 5th Annual Law Review Symposium on “The Role of the Judge in the Anglo-American Tradition,” to be held on September 22-23, 2016. The deadline for submissions is July 15, 2016.
  5. Organizers of the 6th International Conference on Humanities, Society and Culture—ICHSC 2016—invite papers for the conference to be held on September 21-23, 2016 in Vancouver, Canada. The deadline for submissions is July 15, 2016.

Elsewhere Online

  1. David Landau, Can the Columbian Model be Generalized?, Blog of the IACL, AIDC
  2. Ibtissem Guenfoud, Passing Laws without a Vote: the French Labour Reform and Art. 49-3 of the Constitution, Verfassungsblog
  3. Giuseppe Martinico, Political Reductionism at its Best: the EU Institutions’ Response to the Brexit Referendum, Verfassungsblog
  4. Alok Prasanna Kumar, Six Opinions, One Problem: Why a Nine-Judge Bench of the Supreme Court will Rethink a Fifty-Year Old Case, Indian Constitutional Law and Philosophy
  5. Vasujith Ram, Supreme Court on Pre-Legislative Consultation, Law and Other Things
  6. Graeme Cowie, Scotland and a Second Independence Referendum – The Obstacles and Challenges and the Comparative Solutions, UK Constitutional Law Association
  7. Michael Doherty, Should Making False Statements in a Referendum Campaign Be an Electoral Offence?, UK Constitutional Law Association
  8. Saul Leal, The tragic dialectic between happiness and apartheid, AfricLaw
  9. Olika Daniel Godson, Economic, Social and Cultural Rights under the 1999 Constitution of the Federal Republic of Nigeria and the enforceability problem, AfricLaw
  10. Mai Sato, Killing Time: A Comment on the Case of Brandon Astor, Oxford Human Rights Hub
  11. Douglas McDonald, Country Guidance Decisions in the UK and Australia, AUSPUBLAW
  12. Colin P.A. Jones, Japan’s discriminatory koseki registry system looks ever more outdated, The Japan Times
  13. Olivier Moréteau, We the People of the European Union, EUtopia
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Published on July 11, 2016
Author:          Filed under: Developments