–Maja Sahadžić, Guest Professor and Research Fellow (University of Antwerp)
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 firstname.lastname@example.org.
Developments in Constitutional Courts
- The Constitutional Court of Czechia overturned a government ban on retail stores closure in response to the COVID-19 pandemic.
- The Constitutional Court of Moldova blocked the effort of the President to force new elections.
- The Supreme Court of Mexico will vote on gay marriage in Yucatan state.
- The Constitutional Court of Benin validated candidacies for the presidential election.
- The Supreme Court of the United States of America heard arguments over whether the Constitution permits police to carry out warrantless searches of people suspected of fleeing law enforcement after committing minor offenses.
- The Constitutional Court of Slovenia upheld retirement provisions of the stimulus legislation.
- The Supreme Court of Nepal reinstated the dissolved parliament.
- The Supreme Court of the United Kingdom ruled that Uber drivers are workers, not self-employed.
In the News
- The government of Egypt initiated the development of automated Supreme Constitutional Court services.
- The Portuguese President referred a law on euthanasia to the country’s Constitutional Court.
- US lawmakers introduced a bipartisan resolution condemning the actions of China and Hong Kong local authorities as violating the rights and freedoms of the people of Hong Kong.
- The Bulgarian president asked the Constitutional Court to overturn amendments to the rule on a special prosecutor role.
- The government of New Zealand banned conversion therapy practices.
- The Commission of the Bishops’ Conferences of the European Union called on the European Parliament to protect all life.
- The European Parliament approved the Recovery and Resilience Facility, designed to help EU countries tackle the effects of the COVID-19 pandemic.
- Patricia Popelier, Nicholas Aroney, Giacomo Delledonne (eds.), Routledge Handbook of Subnational Constitutions and Constitutionalism (2021) (examining systems with subnational entities that have full subnational constituent autonomy and systems where subnational constituent powers, while claimed by subnational governments, are incomplete or non-existent).
- Ajayan T, Centre-state Relations: A Kerala Experience 12(3) Perspectives on Federalism (analyzing how the ruling party at Centre and the remaining States toppled the Communist government and whether the dismissal of the ministry was constitutional).
- Jens Woelk, Jurisdiction and Pluralisms: Judicial Functions and Organisation in Federal Systems 12(2) Perspectives on Federalism (focusing on the degree to which legal and judicial pluralism is possible within the general legal system of the State).
- Laura Thaut Vinson and Peter Rudloff, Ethnicities and Conflict: A Survey Experiment on the Effect of Narrative Framing on Perceptions in Jos, Nigeria Ethnopolitics (focusing on where ethnic violence divides groups by both religious and tribal affiliation and how does the ‘ethnic’ characterization of conflict affect perceptions of the crises).
- Pierre-Loup Beauregard, Alain-G. Gagnon, and Jean-Denis Garon, Managing Immigration in the Canadian Federation: The Case of Quebec (2021) (discussing constitutional foundations and the historical evolution of provincial and federal legislative powers related to immigration policies in Quebec).
- Marta Simoncini and Giuseppe Martinico, A Knot Not to Be Cut? The Legacy of Brexit over the CJEU 9(1) Politics and Governance (discussing the role of the Court of Justice of the European Union in the Brexit saga and the impact of Brexit over the future structure and activity of the CJEU).
- Erika Arban, Giuseppe Martinico, and Francesco Palermo (eds.), Federalism and Constitutional Law, The Italian Contribution to Comparative Regionalism (2021) (examining the relationship between the central government and local institutions, taking Italy as a case study to present a comparative perspective).
- Baogang He, Michael Breen, and James Fishkin (eds.), Deliberative Democracy in Asia (2021) (demonstrating and comparing the differing uses of public deliberation in Asia through the cases of India, China, Nepal, Japan, South Korea, Singapore, Mongolia, and Malaysia).
Call for Papers and Announcements
- The Institute for Comparative Federalism welcomes applications from scholars and practitioners for the Federal Scholar in Residence Program. The deadline for submissions is July 1 2021.
- The Institute for Comparative Federalism accepts papers for the “Diversity Governance Papers (DiGoP) – Constitutional, Territorial and Societal Pluralism” online working paper series.
- ECPR organizes the General Conference “Comparative Territorial Politics: Citizens, Elites, and Institutions in Multilevel States” to be held online from August 30 to September 3 2021. The deadline for roundtables proposals is March 15 2021.
- The Faculty of Law of the University of Social Sciences and Humanities in Warsaw, the Faculty of Law and Economics of the University Jaume I de Castellón, the Institute of Comparative Law and Interdisciplinary Research of the University of Lodz, and the Faculty of Legal Sciences of the University of Las Palmas ULPGC organize the 11th Polish-Spanish Conference on the European Legal Tradition “Women, Society and Law: from Roman Law to Digital Age” to be held online, on April 30 2021. The deadline for submissions is March 10 2021.
- IACL-AIDC announces the international conference “Comparative Legal Review and the Judicial Protection of Gender Equality” to be held on 4-5 March 2021.
- The International Association of Centres for Federal Studies opened entries for Ronald L. Watts Young Researcher Award 2021. Nominations and papers are due on April 30 2021.
- Pelin Baysal, Beril Yayla Sapan, and Kardelen Özden, New Constitutional Court ruling on employers’ inspection of employees’ corporate emails, International Law Office
- Salleh Buang, Should we have a constitutional court?, New Straits Times
- Natasha Bernal, The Supreme Court owned Uber. What comes next is much worse, Wired
- Hugo Murphy, The Weekly Round-up: Free Speech: Chilling Effects or Phantom Threats?, UK Human Rights Blog
- George Pagoulatos and Katerina Sokou, US-Greece relations in the Biden era: Why the road to rebuilding the transatlantic alliance runs through Athens, Atlantic Council
- Nicholas Kilford, The UK Internal Market Act’s Interaction with Senedd Competences: The Welsh Government’s Challenge, UK Constitutional Law Association Blog
- Ennatu Domingo, Fiscal decentralization for a functional Ethiopian federation, Ethiopia Insight
- Davide Bevacqua, Rule of law: Romania and Bulgaria’s reforms from within the Union, Eureka!
- Thomas Perroud, A Witch Hunt In French Universities, Verfassungsblog
On October 27, 2020, an extended bench of the Israeli Supreme Court held a hearing in HCJ 2905/20 et al. Regarding the Basic Law: Government, Amendment No. 8 and the Temporary Order (the Alternation of Government), a hearing that was broadcast live.
One argument that came up briefly in the discussions is the issue of the “cumulative effect doctrine.” This argument appears in detail in the petition of the Movement for Quality of Government. They argue that the “cumulative effect doctrine has come to examine the legal issues of a set of legislative arrangements and their aggregate significance for the constitutional regime.” The accumulation of legislative arrangements creates an unconstitutional cumulative effect. In other words, a separate analysis of each arrangement misses the point; you see the trees – you miss the forest.
In this short note, I seek to focus on this argument and try to establish a preliminary theoretical basis for the concept of “quantity makes quality” in the context of unconstitutional constitutional changes and judicial review of constitutional amendments.Read the rest of this entry…
Symposium |Constitutional Struggles in Asia | Part V | Determining What is ‘Thai’: Thailand’s Constitutional Court and Identity Polarisation
[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part V of a five part series, in addition to the Introduction.]
Constitutional Battles in Contemporary Thailand
Like many Asian countries, the Kelsenian-style Constitutional Court (‘CC’) was established in Thailand in 1997 for the purpose of consolidating liberal constitutionalism through constitutional adjudication. At a fundamental level, liberal constitutionalism advances the idea that public authorities derive legitimate authority by acting according to the law, which should contain some normative content such as the protection of individual liberties, and that their actions are subject to judicial review.
Having experienced authoritarian pasts, the attempt to consolidate liberal constitutionalism, however, inevitably comes into conflict with the traditional notion of authority, i.e, Thai-ness, which emphasises the unity of Thai nation embodied in a righteous Buddhist monarchy, rather than a commitment to legality and individual rights. As an integral part of the Thai nation, the holdover elites, the military, and royalist supporters therefore commonly assert that threats to the monarchy constitute sources of a political crisis. For them, liberal constitutionalism is a foreign – alien – product which seeks to replace the notions of strong leadership, national homogeneity, and social hierarchy underlying Thai-ness with those of legality, human rights, and equality, thus potentially threatening royal hegemony. Coups and martial law backed by the royalist-conservative elites has become a key mechanism to protect Thai-ness. Yet, stronger demands for liberal constitutionalism further propelled by the constitutional reform in 1997, have forced the elites and the military to contend with it and politically acknowledge its legitimacy.Read the rest of this entry…
The Historian of the Future in Brazilian Democracy: The Challenges of Interpreting and Comparing Events of Our Own Time
—Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
For a Brazilian, the prospect of Trump winning the US presidential elections in 2020 could mean that Brazil, with its less robust institutional framework and democratic tradition, would very likely re-elect Jair Bolsonaro as President in 2022. The “Trump of the Tropics”, after all, shares similar strategies of leadership mystification, massive adoption of social media as direct communication with his supporters, and creation of a network of misinformation and parallel reality. Many other typical tactics of would-be autocrats are also present, but Bolsonaro seems to behave as if he is taking his steps in Trump’s shoes, in a symbiosis that looks nothing short of subservient. The playbook looks weirdly similar despite the institutional differences of both countries. Yet Trump lost the election, and, as largely predicted, not only did he not concede, but also did everything he could to contest the results and attack the electoral system. Barton Gelmann, in September 2020, wrote for The Atlantic, the story “The Election that Could Break America,” whose main argument was already in the subtitle: “If the vote is close, Donald Trump could easily throw the election into chaos and subvert the result. Who will stop him?.” He was right, though the outcome – “the chaos candidate and the commander in chief will be one and the same” – did not prevail in the end. Institutions seemed to have worked somehow, but American democracy ended up seeming far less robust. For that Brazilian, this sequence of events certainly looked shocking, but also frightening: What happens if Bolsonaro loses the election? If chaos followed in the US, what about Brazil?
Constitutional lawyers and political scientists are keen on predicting what the outcome of events will be, and the impact of the US presidential elections on Brazil under Bolsonaro is no different. It is a fascinating case for comparative law and politics because similar experiences provide valuable material for observing the many variables that may or may not favor the expected outcome. Moreover, they tend to expose the need to go beyond the traditional approach to constitutional law or political science. More than normative assumptions or rational choice models of all sorts and complexities, such attempts to foresee the future have to deal with the imponderable clash between short and long-term histories, which is intensified by the unsurmountable challenges of comparative studies. The future is always a difficult bet, but it is an even more difficult one if what has long lain beneath the fast-changing events of history is overlooked.Read the rest of this entry…
The AALS Section on Comparative Law is pleased to announce the third annual “Mark Tushnet Prize” to recognize scholarly excellence in any subject of comparative law by an untenured scholar at an AALS Member School. All untenured scholars are eligible, including but not limited to tenure-track professors, visiting assistant professors, lecturers, academic fellows, and graduate students.
The 2022 Prize will be awarded at AALS Annual Meeting to the author(s) of a scholarly article judged to have made an important contribution in the field of comparative law. This article must have been published in an academic journal between July 1, 2020 and June 30, 2021.
The Prize was awarded for the first time at the 2020 AALS Annual Meeting to Professor Jorge Farinacci-Fernós (Interamerican University of Puerto Rico Law School) for his article on “Post-Liberal Constitutionalism,” 54 Tulsa Law Review 1 (2018). It was awarded for the second time in 2021 to Professor Pamela Bookman (Fordham University School of Law) for her article on “The Adjudication Business,” 45 Yale Journal of International Law 227 (2019).
Nominations for the 2022 Prize should be sent by email to Trish Do (tdo[at]law.utexas.edu) no later than 12:00pm Central Time (U.S.) on August 1, 2021. Nominations should include the full name, institutional affiliation, and contact information for the nominated scholar, in addition to a PDF version of the published article to be considered for the Prize. Self-nominations are welcomed. A reminder: all nominees must be affiliated with an institution registered as a member of the AALS.
For all questions, please contact Professor Richard Albert (richard.albert[at]law.utexas.edu), Chair of the Prize Committee for the AALS Section on Comparative Law.
Richard Albert (Texas) [Chair]
Irene Calboli (TAMU)
Timothy Webster (Western New England)
About Mark Tushnet
Mark Tushnet, a former president of the Association of American Law Schools, is the William Nelson Cromwell Professor of Law at Harvard Law School. A former law clerk to Justice Thurgood Marshall, Tushnet is an authoritative voice in constitutional law and theory. His scholarship spans all areas of public law, including comparative constitutional law, a field in which he has co-authored a leading casebook. A respected teacher, a devoted mentor, and an influential scholar, he retired from the Harvard faculty in June 2020.
About the AALS
The Association of American Law Schools (AALS) is a 501(c)(3) nonprofit association of 179 law schools. Its members enroll most of the nation’s law students and produce the majority of the country’s lawyers and judges, as well as many of its lawmakers. The mission of AALS is to uphold and advance excellence in legal education. In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities-local, national, and international. Founded in 1900, AALS also serves as the learned society for the more than 9,000 law faculty at its member schools, and provides them with extensive professional development opportunities, including the AALS Annual Meeting which draws thousands of professors, deans and administrators.
Symposium |Constitutional Struggles in Asia | Part IV | The Hong Kong National Security Law: Challenging Constitutionalism in Hong Kong and Abroad
[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part IV of a five part series, in addition to the Introduction.]
— Eva Pils, The Dickson Pool School of Law, King’s College London
On 30 June 2020, the Standing Committee of the National People’s Congress enacted the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong S.A.R (‘the Hong Kong National Security Law’ or ‘HKNSL’). This law was a response to the political protest that engulfed Hong Kong through much of 2019. While aimed ostensibly at quelling a crisis, the new law has prompted deep disquiet both locally and internationally.
This contribution examines the constitutional implications of the HKNSL. It argues that the substance of this law as well as the manner in which it is being deployed damaged the Hong Kong Basic Law’s (already faltering) status as an authoritative, binding regional constitution that enshrines, albeit partially, many liberal-democratic constitutional values. It also highlights the challenge posed by the HKNSL to constitutional values in other states. The law stakes a sprawling claim to extraterritoriality: it applies to any individual committing the crimes it defines, even if they are not a Hong Kong permanent resident and are outside Hong Kong. In this regard, I will consider briefly how states and international institutions might respond to a measure that will, both formally and informally, have transnational effects on freedom of expression and association.Read the rest of this entry…
Symposium |Constitutional Struggles in Asia | Part III | Thin but Resilient Constitutionalism in Japan?
[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part III of a five part series, in addition to the Introduction.]
— Akiko Ejima, School of Law, Meiji University, Tokyo, Japan
Introduction: 75-year-old Constitution without amendment?
In 2021, the Constitution of Japan will be 75 years old if the day of its promulgation is considered as its birthday. The government led by the Liberal Democratic Party (LDP) has been in power most of the time since 1955. The Constitution has never been amended, but has regularly faced serious challenges in the Cold War era, the Post-Cold War era, and the current COVID-19 pandemic, although the nature of each challenge varies.
When the Constitution was drafted, its main goal was demilitarization and democratization of Japan because of the consequences of World War II. Therefore, it was not difficult to install Article 9 (“pacifism” clause renouncing war and prohibiting war potential) which shared the idealism of the UN Charter seeking international peace and security. However, under the Cold War regime where the UN peace-keeping ability was paralyzed, the Japanese defense policy developed largely based on the US-Japan relationship, which facilitated the US army base in Japan and the creation of the Self-Defense Forces (SDF). This did not reflect the constitutional commitments in Article 9. The Japanese government tackled this constitutional gap by changing constitutional interpretations instead of amending the Constitution.Read the rest of this entry…
—Robert Rybski, Assistant Professor at the Faculty of Law and Administration of the University of Warsaw
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 email@example.com.
Developments in Constitutional Courts
- The Parliament of Ukraine appointed a new judge for the Ukrainian Constitutional Court, contrary to the recommendation of the Venice Commission.
- The Supreme Court of India ruled on the right to protest, holding that prolonged dissent or protest cannot be continued in the form of occupation of public place affecting the rights of others.
- The Polish Government published the judgment of the Constitutional Tribunal restricting the right to abortion with a 3-month delay.
- The Federal Constitutional Court of Germany dismissed a challenge to undermine the continuation of a criminal proceeding against a 77 years old defendant due to concerns in the context of persisting COVID-19 pandemic.
- The Constitutional Court of Kuwait ordered a recount of votes in two constituencies in the December 2020 parliamentary elections.
- A subcommittee of the US House Judiciary Committee will hold a hearing on the shadow docket of the US Supreme Court.
In the News
- Despite pandemic restrictions, carnival caricatures were paraded through empty streets of Duesseldorf in Germany, to promote freedom of expression.
- Blacked out screens, silent radio stations and black front pages of most media in Poland marked a day-long protest against plans to introduce media ads tax modelled on the Hungarian scheme.
- Supreme Court of Bangladesh (High Court Division) ordered the Bangladesh Telecommunication Regulatory Commission to remove the content of Al Jazeera’s material “All the Prime Minister’s Men” from all online platforms.
- Facebook introduced a news ban for its Australian users after the Australian House of Representatives passed a bill to enforce payments to publishers for using their content on external online platforms.
- Donald Trump has been acquitted in the second impeachment proceeding in the US Senate.
- The Governor of Montana signed a “constitutional carry” bill that, among other things, allows bearing arms within university premises.
- The adoption of the Equal Rights Amendment to the US Constitution regained traction.
- Tom Gerald Daly and Wojciech Sadurski (eds.) Democracy 2020. Assessing Constitutional Decay, Breakdown, and Renewal Worldwide (2020) (collecting essays on constitutional disturbances that presented globally clearly depict a raising wave of constitutional disturbances)
- Giovanna De Minico and Oreste Pollicino (eds.) Virtual Freedoms, Terrorism and the Law (2021) (explores the thin line between freedom of expression and regulations that aim at maintaining security in the fight against terrorism in the area of digital resources)
- Dirk Ehlers and Henning Glaser (eds.), State and Religion. Between Conflict and Cooperation (2020) (exploring relation between normative and religious system from various perspectives, including constitutional theory and constitutional law)
- Humberto Briceno Leon, The Jurisdiction of the Inter-American Court of Human Rights Should Outlive Defection (2020) 52 University of Miami’s Inter-American Law Review 1 (discusses jurisdictional problems of treaty defection and presents a jus cogens complementary jurisdictional model)
- Mirjam Künkler and Tine Stein (eds.), Religion, Law, and Democracy. Selected Writings Ernst-Wolfgang Böckenförde, Volume II (2021) (presenting to international audience selection of translated writings of Ernst-Wolfgang Böckenförde on law, religion and democracy, including experiences as a judge of the German Federal Constitutional Court)
- Olabisi D. Akinkugbe, The Politics of Regulating and Disciplining Judges in Nigeria, in Richard Devlin and Sheila Wildeman (eds.) Disciplining Judges (2021). (discusses socio-political context that might be missed while studying the National Judicial Council in Nigeria).
Calls for Papers and Announcements
- Maastricht Centre for European Law invites submission for an online workshop on “EU Democracy and Rule of Law,” scheduled for June 24-25, 2021. The deadline for submission of abstracts is February 28.
- Kyiv-Mohyla Law and Politics Journal invites submissions to its seventh edition. The deadline for submissions is March 30, 2021.
- Comparative Constitutional Law and Administrative Law Journal (CALQ) invites submissions for its upcoming issue. The deadline for submission is March 15, 2021.
- Irish Journal of European Law invites submissions for its 2021 Volume. The deadline for submission is March 26, 2021.
- Vefassungsblog, the Democracy Reporting International, and the Horizon-2020 RECONNECT project organize an online symposium on “Power and Covid-19 Pandemic.” The symposium will take place on February 24, 2021.
- Heidelberger Salon digital – a book launch conversation “Democracies Out of Sync? On Checks and Balances in EU Member States” hosted by Max Planck Institute for Comparative Public Law and International Law in cooperation with re:constitution and Rzecznik Praw Obywatelskich. Save the date: February 26, 2021, 14.00 CET.
- Sujit Choudhry and Asanga Welikala, Myanmar’s Military Coup D’état is Unconstitutional: How Should the International Community Respond?, IACL-AIDC Blog
- Robin Geiß and Henning Lahmann, Data Protection in Armed Conflict, Verfassungsblog
- Julio Rios-Figueroa, Mexico’s Constitutional Reforms: Threats to Judicial Independence from Within?, ConstitutionNet
- Michael Hollerich, A Christian in the Office of Constitutional Judge. Ernst-Wolfgang Böckenförde on religion and democracy, Commonweal
- Or Bassok and Menachem Mautner, Israeli High Court’s Pursuit of a Constitutional ‘Gospel’ Haaretz
- Kalika Mehta, Tailoring the Jurisdiction of the ECHR. The ECtHR’s Grand Chamber Decision in Hanan v. Germany, Verfassungsblog
- Valentina Rita Scotti, The Debate on the Istanbul Convention in Turkey: A Populist Reinterpretation of the Principle of Gender Equality, IACL-AIDC Blog