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I·CONnect

Blog of the International Journal of Constitutional Law

Introduction to I-CONnect Symposium–The Aftermath of the Italian General Election of March 4, 2018: Political and Constitutional Issues

[Editor’s Note: I-CONnect is excited to feature a special symposium on the Italian general election of March 4, 2018. The symposium will feature four parts, including this Introduction. We are grateful to Professor Antonia Baraggia for convening this symposium. We hope it will illuminate some of the quite fascinating and important political and constitutional questions arising out of the election.]


Antonia Baraggia, Assistant Professor of Comparative Law, University of Milan, Italy.

Following the March 4th 2018 general election, Italy experienced the rise and the victory of an anti-establishment party and of a strongly right-wing party: respectively, the Five Star Movement emerged as the first political actor (32% of the votes) and the North League emerged as the first party (17% of the votes) of a coalition of center-right forces supported by 37% of the electorate.

Both parties, which after three months of negotiations finally entered into a very peculiar coalition government, seem to be strongly euro-sceptic, and many observers have pointed out that this strange Italian government coalition could strengthen the general trend of the rise of populism experienced by other democracies around Europe.

At first sight, this analysis is partly true: without doubt the multiple crises faced by Europe (the refugee crisis and the economic crisis) and the apparent powerlessness of public institutions at both  the national and European levels to successfully tackle the crisis, have unveiled the limits and the contradictions of the social-democratic state, fostering popular discontent and the perception of insecurity.

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Published on August 14, 2018
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What’s New in Public Law

Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

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

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

Developments in Constitutional Courts

  1. The Supreme Court of India concluded oral arguments in a case concerning the constitutional validity of the criminalization of adultery.
  2. The Constitutional Court of Mali rejected appeals from opposition parties alleging irregularities in the voting process for the election of the President and confirmed that second round voting will proceed according to schedule.
  3. The Supreme Court of Pakistan set aside an order from a subordinate court to restrain the Election Commission of Pakistan (ECP) from issuing the victory notification of Pakistan Tehreek-i-Insaf (PTI) Chairman Imran Khan a certain constituency in Lahore and ordering the returning officer to hold a recount of all ballot papers.
  4. The Supreme Court of Brazil held public hearings on the decriminalization of abortion within the first 12 weeks of pregnancy.
  5. The Supreme Court of India considered the constitutional validity of the practice of female genital mutilation in the minority Dawoodi Bohra Muslim community.
  6. The Federal Constitutional Court of Germany held that making pension benefits contingent upon the transfer of an agricultural holding constitutes a factual interference with the freedom of property under Art. 14 of the Basic Law.
  7. The Spanish Supreme Court established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State.

In the News

  1. Argentina’s Senate rejected a bill which would have legalised abortion in the first 14 weeks of pregnancy.
  2. A data protection group filed a constitutional complaint at the Federal Constitutional Court in Karlsruhe against a law which allows authorities to read encrypted messages by secretly installing spyware on computers or mobile phones by exploiting security loopholes.
  3. In the latest turn in the ongoing debate on land expropriation without compensation in South Africa as part of the ANC’s land reform drive, agricultural industry body AgriSA has expressed its intention to mount a legal challenge to this at the Constitutional Court.
  4. Nelson Chamisa of the MDC Alliance, the main opposition party to the ZANU-PF, confirmed that it would seek annulment of the recently concluded Zimbabwean presidential election results in court.
  5. A Seoul city court rejected a challenge to the adequacy of the compensation paid to twelve former ‘comfort women’, who allege that the amount paid to them was in violation of a 2011 order of the South Korean Constitutional Court.
  6. The Office of the President of Poland declared that a recent Polish Supreme Court decision to suspend the operation of a law which would force early retirement of a number of its j judges was an attempt to circumvent the law.
  7. The President of Poland stated that he would likely veto a law sought to be passed by the ruling Law and Justice Party (PiS) which would favour larger parties like PiS and the biggest opposition group Civic Platform (PO), while and disadvantaging smaller groups or individuals.
  8. In Sri Lanka, the first legal draft for proposed new constitution has been submitted to Parliamentary steering committee for further discussions.
  9. Cuba plans to hold around 135,000 public meetings to obtain feedback on the draft for its new constitution.
  10. The Speaker of the House in Philippines proposed that the two Houses of Congress vote separately on the new federal constitution.

New Scholarship

  1. Markus Kotzur (ed.), Peter Häberle on Constitutional Theory. Constitution as Culture and the Open Society of Constitutional Interpreters (Nomos/Hart Publishing, 2018) (presenting a collection of essays on how processes of constitutionalisation are themselves cultural processes; their outcome, the constitution, thus qualifies as an emanation of culture itself).
  2. Jedediah Purdy and David Singh Grewal, The Original Theory of Constitutionalism, 127 (3) Yale Law Journal (2018) (reviewing Richard Tuck’s The Sleeping Sovereign: The Invention of Modern Democracy, and offering a modern theoretical account of constitutionalism drawing from classic social contractarian models).
  3. Fiona Shen-Bayh, Strategies of Repression: Judicial and Extrajudicial Methods of Autocratic Survival, 70(3) World Politics (2018) (arguing that autocrats use a judicial strategy of repression when confronting challengers from within the ruling elite).
  4. Diego Werneck Arguelhes and Leandro Molhano Ribeiro, ‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory 7(2) Global Constitutionalism (2018) (arguing that within the Brazilian Supreme Court, the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory).
  5. Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (Hart Publishing, 2018) (presenting the first major empirical study of the use of foreign jurisprudence at the UK Supreme Court).
  6. The Brandeis Institute for International Judges, Oslo Recommendations for Enhancing the Legitimacy of International Courts (2018) (formulating principles aimed at reinforcing the legitimacy of institutions of international justice).
  7. Ulrich Wagrandl, Transnational militant democracy 7(2) Global Constitutionalism (2018) (examining two strains of militant democracy: the first, ‘transnational democracy gone militant’, epitomized by the European Union (EU)’s power to enforce liberal democratic standards in its Member States, the second ‘militant democracy gone transnational’, the manifestation of which permits treating people rallying in the EU to attack democracy abroad in the same manner in which we are permitted to treat opponents of ‘our own’ democracy).
  8. Tanzil Chowdhury, Taming the UK’s war prerogative: the rationale for reform 38(3) Legal Studies (2018) (assessing the current state of the war prerogative, specifically focusing on deployment decisions, while also outlining the constitutional position over troop deployments, and scrutinizing recent reform efforts and problematizing the rationale underpinning those reforms).
  9. Dominic J Nardi, Jr, Demand-Side Constitutionalism: How Indonesian NGOs Set the Constitutional Court’s Agenda and Inform the Justices Centre for Indonesian Law, Islam, and Society Policy Papers (2018) (arguing that NGOs have had a crucial and underappreciated impact in determining both which cases reach the justices, and the content of the Indonesian Constitutional Court’s final decisions).

Call for Papers and Announcements

  1. The Democratic Decay Resource (DEM-DEC) released the first monthly update of its bibliography on democratic decay (August 2018), containing new research worldwide from July 2018; key items from January-June 2018; additions to the Bibliography suggested by DEM-DEC users; and forthcoming research.
  2. The University of Notre Dame invites applications for the position of Dean of Notre Dame Law School. For further information, prospective candidates are encouraged to get in touch with Lisa Prigohzy-Milius at nd-lawdean@presidiosearch.com, or go to: http://law.nd.edu.
  3. The University of Hong Kong seeks applicants for Tenure-Track Associate Professor/Assistant Professor or Senior Lecturer/Lecturer positions. Applicants should send a completed application form together with up-to-date C.V., details of relevant experience and course teaching interests, to the Department at dolsen@hku.hk. Application forms (341/1111) can be downloaded at http://www.hr.hku.hk/apptunit/form-ext.doc. Further particulars can be obtained at http://jobs.hku.hk.
  4. Reconnect announced at least three post-doctoral positions in relation to their work on democratic backsliding in Europe.
  5. The University of Geneva announced the position for an academic assistant in EU law.
  6. The Externado University of Colombia announced a seminar on “Authoritarian and abusive constitutionalism in Latin America” on 25-26 October.
  7. The Melbourne Institute of Comparative Constitutional Law issued a call for papers for its Young Scholars Forum at the Melbourne Law School to be held on 27-29 November 2018.
  8. The Melbourne Law School invited applications for the MLS (ARC) Laureate Postdoctoral Fellowship in Comparative Constitutional Law.
  9. The Laureate Visiting Fellowships in Constitutional Law invited applications from outstanding female doctoral and female early career researchers for the opportunity to participate in an intensive mentoring program relative to the Laureate Program with Professor Adrienne Stone, ARC Kathleen Fitzpatrick Australian Laureate Fellow.
  10. The German Law Journal invited special issue proposals for Volumes 20 (2019) and 21(2020) due 31 October.
  11. The Reagan-Fascell Democracy Fellows Program, invited applications from democracy activists, scholars, and journalists for five-month fellowships.

Elsewhere Online

  1. Jess Sargeant, Alan Renwick and Meg Russell, Is a second referendum on Brexit possible? Seven questions that need to be answered, The Constitution Unit, 9 August.
  2. Pin Lean Lau, #NotMarriedat11: Legal Failures to Protect Children from Child Marriage in Malaysia, Oxford Human Rights Hub Blog, 8 August.
  3. Robert Grzeszczak, Ireneusz Pawel Karolewski, The Rule of Law Crisis in Poland: A New Chapter, Verfassungsblog, 8 August.
  4. Stephanie Palmer, Abortion Law: Repeal of the Eighth Amendment in Ireland but a Pyrrhic Victory in Northern Ireland, IACL Blog, 8 August.
  5. Alison Young, Will Brexit change the UK constitution?, Hansard Society, 7 August.
  6. Akash Paun, Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?, The Constitution Unit, 7 August.
  7. Erwin Chemerinsky, The 3 sleeper cases of the last Supreme Court term, ABA Journal, 6 August.
  8. Marta Simoncini, The Uncertain Application of the EU Withdrawal Act 2018. From the Great Repeal to the Contingency Plan?, IACL Blog, 6 August.
  9. Stefanie Kappler and Louis Monroy-Santander, Colombia’s troubled peace process and the lessons of Bosnia-Herzegovina, The Conversation, 6 August.
  10. Alicja Sikora, The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018, EU Law Analysis, 4 August.
  11. James Fishkin, Yes, Ordinary Citizens Can Decide Complex Issues, Wall Street Journal, 3 August.
  12. Radosveta Vassileva, Bulgaria’s Constitutional Troubles with the Istanbul Convention, Verfassungsblog, 2 August.
  13. Linda Greenhouse, Is Clarence Thomas the Supreme Court’s Future?, The New York Times, 2 August.
  14. Adam Etinson, How high to dream?, Times Literary Supplement, 25 July (reviewing Samuel Moyn’s Not Enough: Human Rights in an Unequal World).
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Published on August 13, 2018
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Book Review: Darryl Li on Mazen Masri’s “The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Darryl Li reviews Mazen Masri’s The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State (Oxford: Hart 2017).]


Darryl Li, Assistant Professor of Anthropology, University of Chicago

Last month, the Israeli Knesset passed the “Basic Law: Israel as the Nation-State of the Jewish People,” drawing widespread condemnation. The measure constitutionalizes the principle of Jewish supremacy by foreclosing the possibility of self-determination for the 20% of Israel’s citizens who identify as Palestinian Arabs; legitimizing housing and planning policies that discriminate in favor of Jews; and ending the status of Arabic as an official language. Mazen Masri’s The Dynamics of Exclusionary Constitutionalism: Israel as a Jewish and Democratic State appeared while the Nation-State Law was still being debated, but it is a vital resource for understanding the constitutional context that made it possible and the grim scenarios that lie ahead.

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Published on August 10, 2018
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Majorities Protecting Rights: The 2018 Abortion Reform in Argentina (I-CONnect Column)

Francisca Pou Giménez, ITAM, Mexico City

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Today, the Argentinian Senate will be holding an historic vote on the legalization of abortion in the country. The debate and the vote in the Senate is the second stage of a parliamentary process that started in the Chamber of Deputies, where the bill under consideration was approved last June 14, by a very tight majority and after an electrifying, marathon session filled with uncertainty as to the results up until the very last moment.

The bill legalizes abortion during the first 14 weeks, and decriminalizes it after that point in case of rape, health risks for the woman, and fetal malformation. It allows for the exercise of conscientious objection by individual medical personnel, yet states that health care providers must at all times enjoy the means to carry out legal abortions. The legislation now in force dates to 1921 and decriminalizes abortion in case of rape and threats to the health or life of the woman, but even after an important ruling by the Argentinian Supreme Court in 2013,[1] which underlined the non-negligible space that legal abortion enjoys if the criminal code is properly interpreted under applicable constitutional and treaty provisions, safe and affordable abortion has continued to be largely unavailable to Argentinian women.

After the vote in the Chamber of Deputies, which was accompanied by unprecedented social mobilizations under the coordination of the National Campaign for Legal, Safe and Free Abortion, there have been also strong mobilizations on the part of the Catholic Church, as well as politicians and social movements that oppose the bill and strive to prevent its final passage. Debate in the Senate commissions has been partly sensitive to these criticisms and has led to the drafting of a modified text which cuts the period of legal interruption from 14 to 12 weeks, suppresses the penalties applicable to doctors refusing to practice legal abortions and, far more dangerously, grants to institutions —and not just individuals— the right to conscientious objection. The plenum of the Senate is set to debate and vote on either the modified bill or the original Deputies’ proposal —there seems to be a technical discussion under way on this question— today, August 8, 2018.

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Published on August 8, 2018
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What’s New in Public Law

–Nausica Palazzo, Ph.D. Researcher in Comparative Constitutional Law, University of Trento

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Bulgaria found that a European treaty to combat violence against women runs against the domestic constitution.
  2. The Supreme Court of the United Kingdom held that families no longer need courts’ approval to withdraw “clinically assisted nutrition and hydration” (CANH).
  3. The Constitutional Court of Georgia abolished administrative sanctions for cannabis consumption.
  4. The Constitutional Court of South Korea ruled that the law prohibiting protests nearby a judicial court impermissibly violates the freedom of assembly.
  5. The Constitutional Court of the Czech Republic extended the right of a witness or person being interrogated not to incriminate a family member to “close friends”.
  6. The French Constitutional Council declared the law on trade secrets constitutionally permissible.
  7. The Romania’s president challenged the Administration Code before the Constitutional Court on procedural and substantive grounds.
  8. The Constitutional Court of Turkey rejected the application of a jailed deputy of main opposition party for habeas corpus.

In the News

  1. Poland’s Supreme Court ruled that the Supreme Court’s judges should stay, pending the CJEU’s decision on the judicial reform.
  2. Zimbabwe’s former President wins highly contested presidential elections.
  3. The Pennsylvania AG sought a temporary injunction to block the download of 3D printed gun files from a company’s website.
  4. The Comoros referendum on allowing the incumbent President to seek another term passed.
  5. A superior court in South Africa ruled unconstitutional the diplomatic immunity enjoyed by former Zimbabwean first lady Grace Mugabe after she allegedly assaulted a person.
  6. The ANC in South Africa declared its intention to amend the Constitution to expropriate land without compensation.

New Scholarship

  1. Richard Albert, The Expositor and Guardian of Our Constitutional Values, in Daniel Jutras & Marcus Moore (eds.), The Chief: Essays in Honour of Chief Justice Beverley McLachlin (forthcoming 2018) (examining the essential role of recently-retired Chief Justice of Canada, Beverley McLachlin, in articulating and defending Canadian constitutional values during her tenure)
  2. Dacian C. Dragos, Polonca Kovač & Albert T. Marseille (eds.), The Laws of Transparency in Action. A European Perspective (Palgrave Macmillan, 2019) (offering a comparative and empirical analysis of the implementation of Freedom of Information laws – FOIAs – across Western, Southern Central and Eastern Europe)
  3. Emilio Peluso Neder Meyer, Judges and Courts Destabilizing Constitutionalism: The Brazilian Judiciary Branch’s Political and Authoritarian Character, 19 German Law Journal (2018) (analyzing the role of courts in Brazil as “political” actors slowing down the transition to democracy and constitutionalism)
  4. Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, 128 Yale Law Journal Forum (forthcoming, 2018) (parsing out some overlooked aspects of the Masterpiece Cakeshop decision, especially those concerning the relationship between religious exemptions and antidiscrimination law in cases of sexual orientation and race)
  5. Rory O’Connell, Law’s Majestic Equality? Article 14, the First Protocol and Political Equality, in Marco Balboni (ed.) The European Convention on Human Rights and the Principle of Non-Discrimination (Editorale Scientifica, 2018) (inquiring into whether the European Court of Human Rights’ case law on political rights promotes more of a substantive notion of equality, rather than a formal one)
  6. Meg Russel, Attempts to change the British House of Lords into a second chamber of the nations and regions: explaining a history of failed reforms, 10 Perspectives on Federalism (2018) (retracing the history of the failed reforms of the House of Lords in the United Kingdom, aimed to convert it into a chamber representing its territories)
  7. Benjamin Schonthal, Litigating Vinaya: Buddhist Law and Public Law in Contemporary Sri Lanka, 3 Buddhism, Law & Society (2018) (arguing that public law contributes to the destabilisation and transformation of religious law among Buddhists in Asia)
  8. Robin Fretwell Wilson, Divorcing Marriage and the State Post-Obergefell, in Robin Fretwell Wilson (ed.), The Contested Place of Religion in Family Law (Cambridge University Press, 2018) (examining the reaction of both commentators and public authorities to the Obergefell decision legalizing same-sex marriage and the different proposals to abolish civil marriage)

Calls for Papers and Announcements

  1. McGill University’s Faculty of Law and the Peter Mackell Chair in Federalism announce the second edition of the Baxter Family Competition on Federalism. Participants are invited to submit an original essay related to any aspect of federal theory or practice by January 14, 2019, at 12h00 (EST).
  2. The issue no. 2/2018 of the Italian Journal of Public Law, devoted to “Constitutional adjudication in Europe between unity and pluralism,” and edited by Pietro Faraguna, Cristina Fasone and Giovanni Piccirilli is now out.
  3. The IACL-AIDC launches its call for expressions of interest to form new Thematic Research Groups.
  4. The Ewha University’s Institute for Biomedical Law & Ethics has launched a call for papers for the 2018 Annual Conference on “New Opportunities and Risk of the Genomic Era,” to be held on held December 14, 2018, in Seoul, South Korea. The deadline for submissions is August 20, 2018.
  5. The LUISS University in Rome has issued two calls for a three-year and one-year post-doc position. The deadline for both applications is set on September 28, 2018. Italian and non-Italian scholars are warmly welcomed to apply.
  6. The Faculty of Law at Queen’s University invites applications for a Tenured/Tenure-track position in the areas of International Economic Law at the rank of Assistant or Associate Professor. Further information can be found here.
  7. The Faculty of Law of the University of Groningen offers a post-doc position on the practices of the Rule of Law (RECONNECT project) to candidates with a Ph.D. in Comparative Constitutional Law. The deadline for applications is 9 September 23:59h / before 10 September 2018 Dutch local time. Further information can be found here.
  8. The City University of Hong Kong invites applications for the position of Research Fellow/Postdoctoral Fellow in Hong Kong Basic Law and Comparative Constitutional Law, and Judicial Reform in Mainland China. Further information can be found here or by directing questions to hrojob@cityu.edu.hk.
  9. The Bocconi University School of Law is pleased to host the annual conference of “Diritti comparati” on judicial independence (“L‘indipendenza delle corti nel diritto costituzionale, comparato ed europeo”), to be held in October 18-19, in Milan.

Elsewhere Online

  1. Gabor Halmai, Fidesz and Faith: Ethno-Nationalism in Hungary, EUI Blog on Constitutionalism and Politics
  2. Chris Walker, Would a Justice Kavanaugh Overturn Humphrey’s Executor and Declare Independent Agencies Unconstitutional?, Notice & Comment
  3. Suzie Navot, A new chapter in Israel’s “constitution”: Israel as the Nation State of the Jewish People, Verfassungsblog
  4. Kristof Jacobs, The stormy Dutch referendum experience: Social media, populists and post-materialists, The Constitution Unit
  5. Janne Mende, Which Business? Controversies about the Scope of Application of a Future Treaty on Business and Human Rights, The Völkerrechtsblog
  6. José Ramón Bohon Sosa, Part I: Mexican Democracy: a Divergent Road, IACL-AIDC BLOG
  7. Lucas Minich, Europe’s Clean Energy Ambitions: Revolution or Evolution?, Michigan Journal of International Law online edition
  8. Cynthia Farid, Administrative Law in Postcolonial South Asia – Some Thoughts on Legal History, Admin Law Blog
  9. Sofia Mirandola, European arrest warrant and judicial independence in Poland: Where can mutual trust end?, European Law Blog
  10. Anik Bhaduri, The restitution of conjugal rights in Indian law violates the right to privacy, OxHRH Blog
  11. Radosveta Vassileva, Bulgaria’s Constitutional Troubles with the Istanbul Convention, Verfassungsblog
  12. Dan Harris, The U.S.-China Trade War: What You Need to Do NOW, China Law Blog
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Published on August 6, 2018
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I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: More Questions than Answers

[Editor’s Note: This is the final entry in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. We reiterate our warmest thanks to Professor Marta Rodriguez de Assis Machado for convening this symposium for our readers. The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, and Part IV is available here.]


José Manuel Díaz de Valdés, Director of the Centre of Constitutional Justice, Universidad del Desarrollo, Chile

The partial decriminalisation of abortion on three grounds caused a fierce political and legal battle. It polarised both the society and the Constitutional Court. Constitutional judges complained about suffering unprecedented levels of public and private pressure to secure their vote. One of them was even physically assaulted by groups supporting the abortion bill, and personal relations among the members of the Court soured alarmingly.

In the aftermath of this highly divisive legal battle, there are more questions than answers.

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Published on August 5, 2018
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I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Finding and Losing Women in Abortion Law Reform: The Case of the Chilean Constitutional Decision on Law 21030

[Editor’s Note: This is Part IV in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here, Part I is available here, Part II is available here, and Part III is available here.]


Isabel C. Jaramillo Sierra, Universidad de los Andes, Bogotá

In August 2017, the Chilean Constitutional Tribunal [CCT] ruled in favor of the abortion reform introduced by Law 21030 [the Law]. The Law resulted from a long and difficult campaign led to a large extent by President Bachelet herself. How hard the struggle was is patent in the very fact that the day after its approval, one fourth of the Republic’s Senators asked the CCT to repeal it for violating the Chilean Constitution. At the heart of the debate was the interpretation of article 19 in the Chilean Constitution and the powers it granted to the legislator concerning the protection of “life”. For the plaintiffs, the protection of “life” demands the deployment of state action, and prevents any changes in legislation that represents a step forward in that direction –principle of progressive protection of rights.

The CCT upheld the Law against these charges holding, among others, that women have human rights that need to be balanced against the duty to protect life that the article establishes (TRIGESIMOQUINTO). The decision dedicates several pages to explaining that the Chilean Constitution embraces gender equality and non-discrimination, and presents a series of measures adopted by the legislative and executive branch to materialize this commitment. The CCT highlights duties regarding elimination of violence against women, equal juridical capacity, and the elimination of stereotypes as new emphasis on gender equality derived from the country’s international obligations (TRIGESIMOOCTAVO). The decision, more importantly, mentions women’s rights before even entering the debate about the right to life and the duties it imposes on the state (CUARENTA).

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Published on August 4, 2018
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I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Lessons for Neighboring Latin American Courts

[Editor’s Note: This is Part III in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here, Part I is available here, and Part II is available here.]


–Gabriela Rondon, Sinara Gumieri and Luciana Brito, Researchers at Anis – Institute of Bioethics

In August 2017, Chile’s Constitutional Court took a bold step toward dismantling the country’s total ban on abortion: it upheld the constitutionality of new legislation allowing for legal abortion in three cases: when the woman’s life is at risk, when the pregnancy is a result of rape or incest, and when there is fatal fetal condition. The decision is a historic victory for women’s movements in Chile, who have been fighting for the past 28 years to overturn the cruel ban, which could impose, for example, up to five years imprisonment for a woman who ends a pregnancy with a non-viable fetus or a health professional who provides an abortion for a rape victim. The Court’s ruling is undoubtedly a victory for sexual and reproductive rights in the region – and for human rights more broadly. But there are two lessons from Chile that deserve particular attention: one to be emulated and one to be avoided.

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Published on August 3, 2018
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I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision–Constitutional Constraints on Abortion Regulation: Chile and Ireland

[Editor’s Note: This is Part II in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here, and Part I is available here.]


David Kenny, Trinity College Dublin, School of Law

The Chilean Constitutional Court’s Abortion decision of 2017[1] – upholding a Bill allowing for abortion in cases of threat to life, fatal foetal abnormality, and rape – empowered the Chilean legislature to regulate abortion. Opponents of abortion – who had petitioned the Court to deem the Bill unconstitutional – wished the Constitution to be strict in its limitations on the legislature. In this post, I wish to contrast this to the story of Ireland.

On May 25th 2018, 66% of Irish voters in a referendum voted resoundingly to remove Ireland’s strict constitutional restriction on abortion.[2] This Irish vote was similar to the Chilean Court decision: it empowered the legislature to regulate abortion. It may illustrate that, in the long run, stricter constitutional bars do necessarily hold, and that when they give way, swift liberalisation may follow.

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Published on August 2, 2018
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I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Door Opened and Left Ajar

[Editor’s Note: This is Part I in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here.]


Blanca Rodriguez-Ruiz, University of Seville

The recent decriminalisation of abortion in Chile is indeed to be welcomed, yet it stands as a case of too little, too late. It has arrived at a time when countries are moving from decriminalisation towards time-frame regulations, which guarantee access to abortion during an initial period ranging between ten and eighteen gestation weeks. Of the four possible exceptions to criminalisation, moreover, known as therapeutic, eugenic, ethical and social, Chile only contemplates the first three and does so, in the first two cases, under very restrictive circumstances. Similarly, the decision of the Chilean Constitutional Court on these exceptions has been issued decades after wider cases of decriminalisation, more recently also time-frame approaches to abortion, have been confirmed in other jurisdictions. More in tune with its times, however, the Chilean Court’s reasoning echoes these more recent decisions.

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Published on August 1, 2018
Author:          Filed under: Analysis