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I·CONnect

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

Corporate Campaign Contributions in Brazil: Of Courts, Congresses, and the Agendas of Individual Justices

Juliano Zaiden Benvindo, University of Brasilia

Debates over the relationship between Congress and the Judiciary are quite common in the comparative constitutional literature, especially in the current scenario of rising activism of constitutional courts worldwide. Particularly interesting is to observe how Supreme Courts and Parliaments negotiate the pace of their decisions, sometimes in a symbiotic manner, in order to obtain mutual advantages.[1] However, the literature has mostly focused on institutions rather than on the people behind those institutions. By shifting focus to these people, those interactions become even more complex.

Brazil offers a fascinating recent example. On May 27, 2015, the Chamber of Deputies in Brazil, after a maneuver led by its President, Deputy Eduardo Cunha, approved, in first reading, a controversial proposal for constitutional amendment. This amendment, if approved in a second reading of the Chamber of Deputies and two readings in the Senate, would alter the constitutional text to explicitly authorize corporate donations to fund political campaigns.[2] The unusual element of the proposed amendment is that it is an attempt not to reverse a completed judicial decision, but to anticipate and overturn a decision before it has even been issued. Read the rest of this entry…

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Published on July 3, 2015
Author:          Filed under: Developments
 

The Greek Crisis–A Symptom of the EU’s Constitutional Malaise

Nicole Scicluna, Department of Political Science and International Studies (POLSIS), University of Birmingham

The euro crisis started in Greece and to Greece it returned. Since the Syriza government’s election in January 2015, we have seen a succession of intense and sometimes acrimonious exchanges between Greek officials and representatives of the IMF, EU and member state governments, which culminated on the last weekend of June in bank closures and the announcement of a referendum on the terms of an expired bailout. These bizarre events demonstrate at least three things clearly.

Firstly, that five years of ad hoc crisis management–including the negotiation of a new fiscal stability treaty, the creation of multiple bailout funds, and the (potentially illegal) expansion of the European Central Bank’s (ECB) mandate–have failed to resolve the problems that sparked the crisis in the first place.

Secondly, that intra-EU solidarity has been stretched to breaking point and that trust amongst citizens, national governments and EU institutions is in desperately short supply.

Thirdly, and following from the first two points, that the euro crisis always was and remains a crisis of EU constitutionalism.

What do I mean by that?

Read the rest of this entry…

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Published on July 2, 2015
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Hasebe Yasuo Interview with the Kochi Shimbun

As many readers know, there is a significant debate going on in Japan today about the government’s proposal to pass a new law that would allow for collective self-defense in the event of armed attack. This has led to protests and conflict.  The issue concerns Article Nine of the Constitution, which famously prohibits the maintenance of armed forces and the use of war as an instrument of national policy. Article Nine has long been interpreted to allow for limited capacity for self-defense, which is defined in the Charter of the United Nations as an inherent right of states.  A key question is thus whether or not this limited inherent right self-defense can be expanded without violating the Constitution.

One of the leading figures in the debate is Professor Hasebe Yasuo, a scholar of constitutional law now at Waseda Law School. On June 4, Professor Hasebe testified before a Commission of the Lower House Diet about the proposal, and argued that it was unconstitutional.  Amongst his works are What is a Constitution? and Re-interrogating the Constitution and Peace. He was born in Hiroshima, and is currently 58 years old.  This interview was translated by Prof. Hasebe from his conversation in the Kochi newspaper on June 10, in which he elaborated on his recent testimony, problems in current security legislation, and the meaning of constitutionalism. The interview was entitled An Irregular Constitutional Interpretation. Read the rest of this entry…

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Published on June 30, 2015
Author:          Filed under: Analysis
 

2015 ICON·S Conference on “Public Law in an Uncertain World”–Conference Booklet Available

Richard Albert, Boston College Law School

The International Society of Public Law (ICON·S) will convene its second annual conference later this week at New York University School of Law on July 1-3, 2015. The conference theme is “Public Law in an Uncertain World.” This event builds on the Society’s Inaugural Conference held last year in Florence, Italy, on “Rethinking the Boundaries of Public Law and Public Space.”

The conference booklet has just been released, and is available here. The booklet includes the entire conference program as well as an overview of ICON·S.

The conference will feature a keynote address by Ayelet Shachar, three plenary panels, and dozens of concurrent panels.

ICON·S looks forward to welcoming you to New York City this week, and invites all public law scholars, whether attending this inaugural event or not, to become a member of the Society here.

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Published on June 29, 2015
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What’s New in Comparative Public Law

Rohan Alva, Jindal Global Law School

Developments in Constitutional Courts

  1. The U.S. Supreme Court declared that individuals in same-sex relations have a constitutional right to marriage.
  2. The North Korean Supreme Court convicted two persons from South Korea on charges of spying against North Korea. The Court handed down a sentence of ‘indefinite labour’.
  3. The U.S. Supreme Court invalidated a regulation authorizing law enforcement authorities to check ‘guest registries’ in hotels at any time.
  4. The State Administrative Court, in Jakarta, Indonesia, declined to allow an appeal of a person convicted of trafficking drugs. The appeal had sought review of the President’s decision rejecting a grant of pardon.
  5. The U.S. Supreme Court held that the federal government could validly grant subsidies under the Affordable Care Act.

In the News

  1. The Sri Lankan President officially dissolved the nation’s Parliament, as a step towards seeking support for his plan for full-scale political reform.
  2. The Greek Parliament voted in favour of a proposal to conduct a referendum on the question of Greece seeking a ‘bailout deal’ from institutions that have lent money to the nation. The referendum is scheduled for July 5, 2015.
  3. In Australia, the Senate voted upon legislation seeking to combat ‘online piracy’. The Copyright Amendment (Online Infringement) Bill, 2015, empowers copyright holders to obtain the ‘blocking of websites’ which host content in a manner that infringes intellectual property rights.
  4. In China, a probable legislation is under consideration which will require government officials to take an ‘oath of allegiance’.
  5. The Senate of Ohio in the United States passed a bill prohibiting abortion after the twentieth week of pregnancy. Pro-choice proponents argue that the bill frustrates reasonable efforts to access abortions, even as pro-life proponents welcome its passage.

New Scholarship

  1. Nicholas W. Barber, The Constitutional Regulation of Scottish Secession (assessing the key challenges which may arise in granting regions the right to secede from a union, and suggesting ways in which Scotland’s right of self-determination should be ‘regulated’)
  2. Cheryl Saunders and Michael Crommelin, Reforming Australian Federal Democracy (University of Melbourne Legal Studies Research Paper No. 711) (analyzing the importance of protecting the federal structure of government in Australia, and advancing ‘ten principles’ for improving the federal division of power)
  3. Or Bassok, South African Constitutional Doctors with Low Public Support (Constitutional Commentary, forthcoming, 2015) (reviewing Theunnis Roux’s The Politics of Principle: The First South African Constitutional Court, 1995-2005, and suggesting that the success of the Constitutional Court is attributable to the government acknowledging the Court’s expertise in adjudication)
  4. Laurent Pech, The EU as a Global ‘Rule of Law Promoter’: The Consistency and Effectiveness Challenges (Asia Europe Law Journal, forthcoming, 2015) (critically analyzing the approach of the European Union to the ‘rule of law’, and highlighting particular measures which can improve the EU’s contribution towards its enhancement)
  5. Patrick Yingling, Judicial Conventions: An Examination of the U.S. Supreme Court’s Rule of Four, 38(2) Dublin University Law Journal (forthcoming, 2015) (proposing that the ‘Rule of Four’ on the United States Supreme Court is a constitutional convention, and assessing the possibilites of such a theory affecting ‘constitutional change’ )

Elsewhere on the Internet

  1. Alicia Parlapiano, Adam Liptak and Jeremy Bowers, The Roberts Court’s Surprising Move Leftward, The New York Times
  2. Bharat Malkani, The Death Penalty for Foreign Nationals and Migrant Workers, Oxford Human Rights Hub
  3. Amy Howe, In historic decision, Court strikes down state bans on same-sex marriage: In Plain English, SCOTUS Blog
  4. Mark Kende, Comparative Matters: The Renaissance of Comparative Constitutional Law (book review), Law and Politics Book Review
  5. Saranagan Rajeshkumar, Why the Collegium Will Revive if the NJAC is Struck Down, Indian Constitutional Law and Philosophy

Call for Papers and Announcements

  1. Papers are invited for a special issue of the Federal Governance, on ‘Environment and Federalism: A multidisciplinary approach’. The deadline for submission of papers is the 15th of October, 2015.
  2. A call for papers has been issued by the Latin American Journal of International Trade Law, a new journal of the School of Law, National Autonomous University, Mexico. Papers should be submitted by the 3rd of August, 2015.
  3. Interested participants are invited to send in papers for a conference on ‘Competition, Standardization, and Innovation’, organized, by the Tilburg Law and Economics Center. The conference will be held on the 10th and 11th of December, 2015. Entries must be sent in by the 1st of September, 2015.
  4. The Anti-Discrimination Law Review invites submissions for the journal. Submissions may be in the form of articles, book reviews or case commentaries.
  5. University of Jyväskylä, Finland is organising a conference on ‘Poverty’s Causes and Consequences in the Urban Developing World’, from the 4th to the 6th of August, 2016. Participants interested in particpating in conference sessions should send in a three hunderd word abstract by the 30th of August, 2015.
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Published on June 29, 2015
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Westminster in the Caribbean: The Problem of Prime Ministerial Patronage

Dr. Derek O’Brien, Reader in Law, Oxford Brookes University

St Kitts and Nevis is the smallest federation in the world. Even by Commonwealth Caribbean standards it is tiny, with a population of just over 50,000 and a combined land mass of just over 100 square miles. Yet the events leading up to and immediately following the most recent general elections in St Kitts and Nevis, in February 2015, have caused many political leaders in the Commonwealth Caribbean to be concerned about their potential to tarnish the entire region’s reputation for democratic government and commitment to the rule of law.

For the last 20 years St Kitts and Nevis has been governed by the St Kitts and Nevis Labour Party (SKNLP), led by Denzil Douglas. Recently, however, the SKNLP has struggled to hold on to power, with increasing discord within the SKNLP resulting in the resignation of the deputy Prime Minister, Sam Condor, and the dismissal of another senior government minister, Timothy Harris, in early 2103. In this blog post I wish to explore just how far the SKNLP was prepared to go in its struggle to hold on to power and to consider why it has aroused so much concern among the region’s political leaders.

Read the rest of this entry…

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Published on June 26, 2015
Author:          Filed under: Analysis
 

Why Codify?

Adam Perry, Lecturer in Law, Queen Mary University of London

Britain is always tinkering with its constitution. Sometimes it talks about a more radical change: constitutional codification. Over the past few years, talk of constitutional codification has grown a little more serious. High-profile committees, centres, and scholars have spent a lot of time and energy discussing the issue. Sophisticated reports have been produced (see here and here). Articles have been written.

But I still wonder: what difference would codifying the constitution actually make?

It could make a political or a practical difference. The process of codification might, for example, lead the public to think about what it values most in a constitution. The codification itself might make it easier to identify the country’s most basic rules. It could serve as a source of national pride. These are the sorts of considerations that have been raised in Britain lately. There is valuable literature about them.

I am an academic lawyer, though. I want to know what legal difference codification would make. That issue is rarely squarely addressed. My guess is that most scholars simply assume that codifying a constitution would not in itself make any legal difference. But I suspect that’s a mistake.

Read the rest of this entry…

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Published on June 24, 2015
Author:          Filed under: Analysis
 

Nepal: Agree to (have the Supreme Court) Disagree

Vikram Aditya Narayan, Advocate, Supreme Court of India

Until a couple of decades ago, federalism was nothing more than an academic subject in Nepal. However, it has now become a political reality, with the Parliament/Constituent Assembly deliberating over the manner in which Nepal can and should transform itself under the new Constitution. The basis for a federal setup in Nepal is the need to end the nation’s history of political inequality, which created conditions favorable to the thriving of the monarchy and subsequently the Rana oligarchy.

The demands for federal restructuring go far beyond the need for decentralized administration, with the multiple and diverse ethnic groups laying stress on a structure that respects proportional representation and actual inclusion. Despite the notion of federalism gaining popularity among political parties, agreement on the manner in which Provinces are to be demarcated has been difficult to achieve. In its reports to the Constituent Assembly in 2012, even the State Restructuring Commission of Nepal was unable to come to a consensus on the Provinces to be established, with the number ranging from six to eleven.

However, earlier this month, in what has been hailed as a landmark event, four major political parties in Nepal agreed in principle that under the new Constitution the country would have a federal structure consisting of eight Provinces.

Read the rest of this entry…

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Published on June 23, 2015
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Constitutional Politics of Institutions: The Call for a British Constitution

Susan M. Sterett, Virginia Tech

A written constitution for Britain is even making the American news again, inspired not least by the debates about independence, with the anniversary of the Magna Carta adding continuity and contrast.[1]  American news describes the call for a written constitution as a response to immediate problems.  British constitutionalism is as much a question for the political science of institutional change as it is for those who think about judicial review or the content of constitutional provisions.  Building a public case for a constitution has emerged from reorganized institutions and ideas that infuse them, rather than litigation that overturns what legislatures do, what we often treat as the hallmark of constitutionalism and its evaluation in analyses of the worldwide expansion of juridification and constitutions.[2] Resurgent politics of independence can make constitutionalism look like a response to immediate problems—a way of extending winning political coalitions, for political scientists.  That doesn’t account for the long slow work of making ideas possible.

Institutionalizing legal ideas in law schools and think tanks built conservative legal ideals into American law by relying not upon litigation but upon professional commitments by legal professionals and funders who sponsored interest associations.[3]  Similarly, the re-emergence of an argument for a written constitution and a domestic Bill of Rights for Britain was made possible by years of work by lawyers and legal commentators, and civil servants.  They organized legal practice as human rights practice even before the Human Rights Act, wrote textbooks explaining British constitutionalism and embedding both European and domestic accountability, as well as litigating.  Civil servants helped to reorganize the administration of the courts in a way that paved the way toward the current Supreme Court.  Changes were sometimes responses to immediate problems within practice, and then were available when the broader concerns about constitutional change came to the fore.

The British case concerning constitutionalism doesn’t fit into the categories for analyzing the expansion of constitutions, rights, and courts worldwide that has colored the postwar world, since it’s not either primarily judge-led nor primarily a response to demands by litigants, though it includes both.

Read the rest of this entry…

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Published on June 23, 2015
Author:          Filed under: Analysis
 

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

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

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

Developments in Constitutional Courts

  1. The Seoul Administrative Court in South Korea ruled in favor of gay pride parade organizers, invalidating a police ban on the parade imposed last month.
  2. The U.S. Supreme Court ruled in favor of an Arizona pastor and his church in a challenge to an ordinance that imposed stringent restrictions on signs directing the public to the church’s services.
  3. The Constitutional Court of Zimbabwe held that the administration of corporal punishment to children by teachers, parents, and courts will remain in force for the time being.
  4. The Supreme Court of the Philippines ruled that President Aquino’s executive order revoking the Arroyo administration’s “midnight appointments” is constitutional.
  5. The U.S. Supreme Court held that state governments can restrict the kinds of messages printed on specialty license plates.
  6. The Constitutional Court of Ukraine approved a bill that sharply limits legal immunity for judges and members of parliament.

In the News

  1. Lawmakers in Hong Kong rejected a Beijing-backed reform package that would have forced voters to choose the city’s next leader only from a list of candidates approved by China’s government.
  2. Leaders in Myanmar have tabled two amendment bills that would give parliament a greater say over court appointments and reduce the tenure of court appointees.
  3. United Kingdom Prime Minister David Cameron renewed his call to repeal the Human Rights Act and institute a domestic bill of rights.
  4. The Belgian Privacy Commission announced that it is suing Facebook for alleged violations of Belgian and European privacy laws.
  5. Romania’s Superior Magistrates’ Council rejected 22 proposals that would have hindered the country’s ability to fight top-level corruption.
  6. Cardozo Law Professor Michel Rosenfeld has been appointed a University Professor at Yeshiva University, becoming one of a prestigious few to be granted this honor for achieving outstanding goals in teaching, publications, and research.

New Scholarship

  1. Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale Law Journal 2516 (2015) (giving the term “complicity-based conscience claims” to claims by persons of faith seeking religious exemptions from laws concerning sex, reproduction, and marriage on the ground that the law makes the objector complicit in the assertedly sinful conduct of others and highlighting the distinctive form and social logic of such claims)
  2. Claire Kilpatrick, Constitutions, Social Rights and Sovereign Debt States in Europe: A Challenging New Area of Constitutional Inquiry, EUI Department of Law Research Paper No. 2015/34 (2015) (examining the ways in which constitutions, social rights, and sovereign debt states in Europe expand and challenge existing constitutional and EU scholarship)
  3. Adam S. Chilton, Using Experiments to Test the Effectiveness of Human Rights Treaties, U of Chicago, Public Law Working Paper No. 533 (2015) (discussing the motivations behind experimental work on human rights, the mechanisms that are being tested, and the findings of emerging literature)
  4. Rivka Weill, Constitutional Statutes or Overriding the Court, Jerusalem Review of Legal Studies (Forthcoming) (reviewing Bruce Ackerman’s We the People: The Civil Rights Revolution and examining Ackerman’s work through the eyes of comparative constitutional law)
  5. Nico Krisch, Pluralism in International Law and Beyond, in Fundamental Concepts for International Law: The Construction of a Discipline (Jean d’Aspremont & Sahib Singh, eds., Forthcoming) (tracing the rise of the pluralist paradigm, its different variants, and the broader implications it holds for the study and practice of law)
  6. Thomas Bustamante, On the Difficulty to Ground the Authority of Constitutional Courts: Can Strong Judicial Review Be Morally Justified?, in Bustamante, T. et alli, “Democratizing Constitutional Law” (Forthcoming 2015) (adding to the current debates about the authority of constitutional courts, with a view to showing some of the difficulties present within systems of strong judicial review in constitutional democracies)
  7. Christopher Sargeant, Factortame Revisited and the Constitution Reimagined: The UK Supreme Court Takes its First Ride on the HS2 Rail-Line, 5 UK Supreme Court Annual Review 157 (2015) (considering the recent decision of the UK Supreme Court in the HS2 case and arguing that notwithstanding the importance of the individual conclusions reached on the specific questions raised, the primary significance of this decision derives from the welcome reasoning of the Justices concerning the relationship between the UK legal order and that of the European Union)
  8. Beatriz Pérez de las Heras, EU and US External Policies on Human Rights and Democracy Promotion: Assessing Political Conditionality in Transatlantic Partnership, Romanian Journal of European Affairs, Vol. 15, No. 2, June 2015 (examining recent changes to the foreign policies of the European Union and the United States with respect to human rights and democracy promotion and assessing the impact of these changes on the transatlantic partnership over the last five years)

Calls for Papers and Announcements

  1. National Law University, Jodhpur invites submissions for Volume II, Issue 1 of its Journal on Corporate Law and Governance.
  2. The Utrecht Journal of International and European Law has issued a call for papers for its upcoming special issue on Intellectual Property in International and European Law.
  3. SWPS University of Social Sciences and Humanities will hold its International Conference on Law of Obligations Surrounded by Other Normative Systems on November 6-7, 2015—registration is open until June 30, 2015.
  4. Queen Mary University in London welcomes contributions for its inaugural conference of the Centre for Small States to be held on September 7, 2015.
  5. Tilburg Law and Economics Center, Tilburg University, The Netherlands invites submissions for a conference on “Competition, Standardization, and Innovation” to be held in Amsterdam, The Netherlands, on December 10-11, 2015.

Elsewhere Online

  1. Douglas NeJaime and Reva Siegel, Conscience Wars and Complicity Claims, Oxford Human Rights Hub
  2. Victor Williams, Magna Carta’s 800th Anniversary, Jurist
  3. Daniel Marari, Consolidating Democracy in Tanzania: Presidential Powers under the Proposed Constitution, ConstitutionNet
  4. Andrew McLeod, Myanmar: Proposed amendments seek to entrench legislative supremacy and devolve marginal autonomy to local governments, ConstitutionNet
  5. Michael Addaney, Sexual violence against children: Are girls in Mozambique little angels or sex objects?, AfricLaw
  6. Franck Johannès, Faut-il réformer la Cour de cassation?, Le Monde
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Published on June 22, 2015
Author:          Filed under: Developments