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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


—Irina Criveț, PhD Candidate in Public Law, Koç University


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa has ruled that foreign nationals cannot be enrolled as legal practitioners in South Africa unless they are permanent residents in South Africa.
  2. The UK Supreme Court decided against the UN Committee on the Rights of Persons with Disabilities in the Archie Battersbee case involving the removal of life support.
  3. Malaysia’s Appeal Court has overturned a landmark decision that women should be able to pass on their citizenship to children born overseas just as Malaysian men.
  4. The Federal Court of Malaysia has ruled that Penang’s anti-party hopping enactment is constitutional and that the Article 14A of the Penang State Constitution is consistent with Article 10(1)(c) of the Federal Constitution.
  5. Constitutional Court of Korea will decide whether enforcing a compulsory minimum wage on employers at 9,620 won (US$7.38) violates their freedom of contract and business.

In the News

  1. The Pietermaritzburg High Court postponed the corruption case against Jacob Zuma until mid-October.
  2. A US federal judge sentenced a former militia member to 87 months in prison for leading a mob of rioters and carrying a handgun on the January 6th Capitol riot.
  3. The European Court of Human Rights rejected Archie Battersbee’s family’s request to keep their child on artificial life-support. Instead, it held that it would “not interfere with the decisions of the national courts to allow the withdrawal of life-sustaining treatment from [Battersbee] to proceed.”
  4. Kuwait’s Crown Prince Sheikh Meshal al-Ahmad Al Sabah has issued a decree dissolving the parliament. Elections are expected to take place within two months.
  5. The Parliament of India has passed a bill to ban funding weapons of mass destruction.

New Scholarship

  1. Maria Salvatrice Randazzo(2022), Constitutionalism of Australian First Nations: A Comparative Study, Routledge (examines Australian First Nations constitutionalism by focusing on Warlpiri, Yolngu, and Pintupi legal orders to identify similarities between these constitutional traditions)
  2. Fiona Ey (2022), Guardians of the Constitution: Upholding Judicial Independence During Samoa’s Constitutional Crisis, The Journal of Pacific History (assesses Samoa’s constitutional court’s role in solving 2021 political and judicial crisis)
  3. Adél Köblös (2022), ECtHR Judgements in the Decisions of the Hungarian Constitutional Court, (explores the influence of the ECtHR on the case law of the Hungarian Constitutional Court based on the analysis of thirty selected decisions)
  4. Joe Boesten (2022), Constitutional Origin and Norm Creation in Colombia: Discursive Institutionalism and the Empowerment of the Constitutional Court, Routledge (analyses ‘why and how the Constitutional Court has increased its legal power through curtailing constitutional reform in 2010—and outlines the significance of this question for institutional theory’)
  5. G. de Ghantuz Gubbe (2022), Populism, Constitutions, Constitutional Courts, and Constitutional Democracy, Palgrave Macmillan (takes a different methodological approach to explore ‘the analytical contraposition between populism and constitutionalism’)

Calls for Papers and Announcements

  1. The Connecticut Law Review calls for submissions to the climate and environmental justice symposium titled “Climate and Environmental Justice in the 21st Century: A Just Transition”. The DL for proposal submission is September 1st, 2022.
  2. Annual Professor John R. Nolon Student Writing Competition invites law students to write entries on Environmental Constitutionalism. The DL for submissions is August 15th, 2022.
  3. Northumbria University’s Family Justice Research Interest Group will organise theGender Based Violence Conference: Reflections On The World Envisaged In “After Dark” by Jayne Cowie’ and is seeking submissions on issues concerning the theme of the conference, including academia, legal practice, the police and other professionals from the criminal justice sector, and the charitable sector, including domestic abuse support services. The DL for abstract submission is Friday, September 9th, 2022.
  4. The Irish Jurisprudence Society invites proposals to society’s Workshops 2022-23 on legal philosophy by Monday, August 22nd, 2022.
  5. The KTH Royal Institute of Technology in Stockholm invites researchers from all over the world to the online ‘Workshop Exploring Low-Flying Academia’ that will take place on September, 14th, 2022. The workshop is supported by the research project ‘Decreased CO2-emissions in flight-intensive organisations’.

Elsewhere Online

  1. Gautam Bhatia, ICLP Turns 9 The Leap of Faith, Indian Constitutional Law and Philosophy
  2. Tanmay Singh and Amala Dasarathi, Challenging Censorship, Verfassungsblog
  3. Leandro Mancano, Everything Must Remain the Same for Everything can Change,  Verfassungsblog
  4. Raphael Oidtmann, Fighting on the Business Front, Verfassungsblog
  5. Ayesha Wijayalat, Sri Lanka in a Constituent Moment, IACL-AIDC Blog
  6. Robyn Powell, Achieving Disability Justice After Dobbs, Oxford Human Rights Hub
  7. Danielle Pullan, Is the EU any More Progressive on Abortion Policy than post-Roe’s America?, The Loop ECPR’s Political Science Blog
  8. Sukarm Sharma and Siddhant Pengoriya, A Constitutional Appraisal of Non-Violent Disruptive Protests, The Leaflet
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Published on August 8, 2022
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Constitutional Law Should Know Better: Society and Lucky Contingencies in Brazil’s Awakening Democracy

Juliano Zaiden Benvindo, Associate Professor at University of Brasília and CAPES/Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law

“PEC Kamikaze”, “PEC of Despair” or “PEC of the Coup” – This is how a recently approved proposal for constitutional amendment (Proposta de Emenda à Constituição – PEC, in Portuguese) has been dubbed as the potentially last resource for President Jair Bolsonaro to gain some votes for the presidential election in Brazil in October. The amendment establishes the so-called “state of emergency”, which would authorize the government to raise public spending and create new social benefits despite electoral and fiscal rules prohibiting them within the electoral year. As a strategy of serious economic consequences whose electoral goals are not hidden – it includes a sunset clause with an expiration date of December 31st, 2022 – such an amendment is the upmost expression of how constitutional erosion in the country has reached new highs. It shows that not only has Congress sided with Bolsonaro in his autocratic goals, but also that the Supreme Court has grown increasingly timid as threats against it have intensified.

Lucky contingencies matter, though. Despite all efforts and attacks on Brazil’s rule of law, the fact that Bolsonaro is being challenged by the very popular former President Lula da Silva may explain why Brazilians, according to the current polls, are likely to get rid of Bolsonaro in the coming elections. It is certainly a relief, but it also speaks volumes about the difficulty of constitutional and institutional means to provide themselves effective mechanisms to fend off would-be autocrats such as Bolsonaro. In the end, Brazil may overcome such a nightmare and tragedy, but perhaps only because there is a politician who is strong enough to beat him and a society that is finally awakening for reaction, not because institutions are working properly to protect Brazil’s democracy. Such a dysfunctional response begs the question of how institutions and society will react in the pretty likely scenario of Bolsonaro not conceding his defeat and even plotting a coup against Brazilian democracy. Where is constitutional law failing in such cases?

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Published on August 5, 2022
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On the Legacy of Justice Scalia in Dobbs: The Lack of Comparative Analysis

–Stefanus Hendrianto, Pontifical Gregorian University

Much has been and will be written about Dobbs v. Jackson Women’s Health Organization, the decision by the Supreme Court of the United States which held that the Constitution of the United States does not confer a right to abortion, and which overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Most of the public discussion points out that Dobbs will be “the enduring legacies” of several different people, including President Donald J. Trump (for his nomination of three conservative Justices) and Chief Justice John Roberts (for losing control of his Court). But Dobbs will also be “the enduring legacy” of the late Justice Antonin Scalia because of the lack of comparative analysis in the Court’s opinion.

Revisiting Justice Scalia’s view on Abortion and Comparative Law

For many, the late Justice Scalia was known for his opposition to the practice of citing comparative norms.[1] But his view on comparative law was more nuanced. He did not simply warn about the danger of the practice of citing foreign cases; instead, he was critical of the ideological convergence in the comparative constitutional realm. Scalia’s main concerns about the universal law of human rights related to moral questions such as the right to abortion, right to assisted suicide, right to same-sex marriage, etc.[2]  The bottom line is that Justice Scalia believed that the universal law of human rights had become an ideological project to define right and wrong.

As comparative law inquiry is closely intertwined with the universal law of human rights, Scalia then moved to attack the “cherry picking” approach because comparative theorists and judges would always have their own ideological biases, with their adherence to the universal law of human rights. In Scalia’s view, “if you are a living constitutionalist, you are almost certainly an international living constitutionalist.”[3]

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Published on August 3, 2022
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What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Sassari (Italy)


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Slovenia has legalized same-sex marriage and adoption by homosexual couples. The highest Slovenian authority declared that the distinction between heterosexual and homosexual couples resulted in discrimination, which is incompatible with the Slovenian Constitution.
  2. On 30 June 2022, the United States Supreme Court handed down its opinion in West Virginia v. Environmental Protection Agency, holding by a 6-3 majority that the U.S. Environmental Protection Agency overstepped its statutory authority during the Obama Administration in adopting the Clean Power Plan, a regulation to reduce greenhouse gas and other emissions from existing power plants. 
  3. The Superior Court of Justice of Catalonia brought an appeal before the Constitutional Court against the new law on the use of languages ​​in schools and the linguistic projects approved by the Parliament of Catalonia, which prevent the application of its sentence that forced that 25% of the classes were in Spanish.
  4. The Spanish Constitutional Court has for the first-time recognized gender identity as a fundamental right protected by the Constitution, for which reason the Court has declared illegal any type of discrimination based on this cause.
  5. The Constitutional Court of Turkey ruled that a school’s refusal to exempt a pupil from religious classes violated the rights to religious freedom of the pupil and her parents.

In the News

  1. After the referendum’s vote in favour of the new Constitution, the President of Tunisia received the head of the government to discuss the organization of the upcoming Parliamentary elections and those of the Regional Assembly and territories.
  2. On 25 July 2022, U.S. Democrats introduced a bill to establish term limits for Supreme Court justices. The legislation would allow a new justice to take the bench every two years and spend 18 years in active service.
  3. On 21 July 2022, Italian Prime Minister Mario Draghi resigned. The government remains in office only to handle current affairs.
  4. The lower house of the Spanish Parliament approved with 187 votes in favor, 152 against and 7 abstentions a reform of the law concerning judicial power that unlocks the renewal of four Constitutional justices.
  5. On 26 July 2022 EU energy ministers reached a political agreement on a voluntary reduction of natural gas demand by 15% for this winter. The purpose of this Council regulation is to save gas to prepare for possible disruptions of gas supplies from Russia.

New Scholarship

  1. Rosalind Dixon, Tom Ginsburg, Adem Abebe (eds.), Comparative Constitutional Law in Africa (forthcoming 2022) (exploring the rich diversity of African constitutional law).
  2. Charles M. Fombad, Nico Steytler (eds.), Constitutionalism and the Economy in Africa (forthcoming 2022) (examining the relationship between the quest for constitutionalism in Africa and economic growth).
  3. Michel Rosenfeld, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism (2022) (providing a systematic account of the central role of distributive justice in the normative legitimation of liberal constitutions).
  4. Gabriel L. Negretto (ed.), Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (2022) (examining and conceptually developing the relationship between representative and participatory channels of citizen involvement in democratic constitutional rewrites).
  5. Ranieri L. Resende, Impeachment: A Mechanism between Political Accountability and Legal Responsibility? Common Law Sources and the Brazilian Originalist Model, Global Journal of Comparative Law 11, 2 (2022) (analysing the legal-political nature of the Brazilian originalist model of impeachment).

Calls for Papers and Announcements

  1. The Global Summit on Constitutionalism is now accepting submissions for individual papers and fully-formed panels.
  2. Constitutional Studies is seeking submissions for an issue devoted to the topic “Slavery and Constitution Making.” The journal is particularly interested in submissions discussing cases from the Global South (other than Brazil), Europe, and the Islamic World. Submissions are requested by end of August 2022.
  3. The young comparatists of the Italian Association of Comparative Law propose a call for abstracts for the event “The Adjectives of Justice” that will be held at Sapienza, University of Rome, on 2-3 February 2023. The call for abstracts is aimed at young researchers who are interested in developing a discussion that adopts the tools of legal comparison to investigate the multiple dimensions of the concept of justice. Interested scholars shall submit an abstract of about 750 words (in Italian or English) with a short bibliography by 10 September 2022.
  4. The Faculty of Law of the Manipal University, in collaboration with Ranka Public Charitable trust, is organizing 8th edition of Manipal Ranka International Moot Court Competition on Arbitration Law. The competition is open to students pursuing a five-year or three-year LLB programme from a recognised University or Institute. The teams who want to participate in the competition are required to register by 20 August 2022.
  5. The Fifth Worldwide Congress of the World Society of Mixed Jurisdiction Jurists will be held on 14-16 June 2023 in Malta. The theme of the Congress is “Mixity in the Private and/or Public Law”. Proposals should be submitted by 15 October 2022.

Elsewhere Online

  1. Aleksandra Kuczerawy, Lidia Dutkiewicz, Accessing Information about Abortion. The Role of Online Platforms Under the EU Digital Services Act, Verfassungsblog.
  2. Diego Werneck Arguelhes, Weak, but (very) Dangerous. The Bolsonaro Paradox, Verfassungsblog.
  3. Aristi Volou,  When National Laws and Human Rights Standards Are at Odds, Verfassungsblog.
  4. Derrick Wyatt, A majority vote in two referendums? Putting off Indyref2 should not delay a UK rethink on how to handle the issue of Scottish independence, LSE blog.
  5. Aakanksha Saxena, Notes from a Foreign Field: The US Supreme Court’s Abortion Judgment in Dobbs v Jackson, Indian Constitutional Law and Philosophy.
  6. Theunis Roux, What does the US Supreme Court’s decision in Dobbs tell us about the virtues of Australia’s approach to protecting fundamental rights?, AUSPUBLAW.
  7. David Super, Functioning with a Short-Handed Senate, Balkinization.
  8. Joseph Geng Akech, To whom it may concern: South Sudan may not be ready for elections, yet democracy cannot wait, AfricLaw.
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Published on August 1, 2022
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Book Review: Donald L. Horowitz’s “Constitutional Processes and Democratic Commitment”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, David Landau reviews Donald L. Horowitz’s Constitutional Processes and Democratic Commitment (Yale University Press, 2021).]

David Landau, Florida State University College of Law

Twenty-seven years ago, Jon Elster noted that there were few thorough, high-quality studies of the process of constitution making around the world. Fortunately, this academic weakness has been rectified. Yet in the now crowded literature on the topic, Donald Horowitz’s recent book Constitutional Processes and Democratic Commitment stands out. Drawing off of Horowitz’s vast experience studying democratic constitutions, particularly in divided societies, the book is the clearest and most thoroughly-argued exposition of an emerging scholarly position, one which runs counter to the conventional wisdom in the policymaking community in that it privileges inclusion and consensus among elite groups over popular participation. The book is also valuable for its realism and wise eschewing of simple or one-size-fits-all solutions, its careful exposition of cases understudied in the existing literature, and the new questions it raises and aspects of process that it explores. Like many of Horowitz’s other works, it will prove to be an agenda-setter.

Inclusion, Consensus, and Participation

A major virtue of the book is in stating, with admirable clarity, the ends that a good constitution-making process should satisfy. Horowitz argues that processes should aim for two main virtues: inclusion of major social and political groups, and relative consensus among those groups on major issues. Horowitz is much more skeptical about the value of popular participation, the main recommendation of a strain of scholarly work and a dominant recommendation among many international organizations and advisors. He agrees that the public should be kept informed, and that some forms of participation can help provide popular legitimacy, but he argues that participation is not a panacea and that it has some pitfalls, including manipulation by authoritarian actors or by leaders in the service of more divisive agendas.

Horowitz’s vision of constitution making is lucidly presented and well supported by the case studies in the book. These case studies themselves are very valuable. They are drawn generally from deeply divided societies, many of which are not well-known in the general literature. The major case studies include Indonesia, Tunisia, and India (as relative successes), and Sri Lanka, Nepal, Kenya, Fiji, and Iraq (as more problematic cases or outright failures). Horowitz devotes an entire chapter (Chapter 8) to Sri Lanka’s unsuccessful attempt at constitution making between 2015 and 2018, showing in fascinating detail how the search for consensus broke down after a promising start.

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Published on July 30, 2022
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ICON Volume 20, Issue 1: Editorial

Editorial: Guest Editorial: Liberal constitutionalism and postcolonialism in the South and beyond:  On liberalism as an open source and the insights of decolonial critiques; On my way out – Advice to young scholars VII: Taking exams seriously (Part 1); In this issue

We invited Philipp Dann, Professor of Public and Comparative Law at Humboldt University, Berlin, to contribute a Guest Editorial.

Liberal constitutionalism and postcolonialism in the South and beyond:  On liberalism as an open source and the insights of decolonial critiques[1]

It is probably fair to say that these are not the best days for liberal constitutionalism. I don’t need to mention the Russian aggression, which is nothing less than a direct assault on liberal constitutionalism. There are enough other places in the East and West, North and South, where authoritarians contest the basic structures of liberal constitutions and societies. And not only authoritarians; from the progressive side too, contestations of liberal ideas are very popular these days.

But what does the debate look like, when analyzed through the lens of postcolonial theories or from the perspective of the South? Is there a basic incompatibility of liberal constitutionalism and postcolonialism, as some claim? Or is it rather the other way around: can postcolonial or Southern perspectives highlight problems and potentials of liberal constitutionalism in especially productive ways?

In this Editorial, I want to make three observations and arguments: I will first contend that given the breadth of the terms in use here, we should not seek precise definitions but rather be mindful of contexts and distinctions. Considering a few examples of how liberalism has played out in the South, we realize that there are various forms of liberal constitutionalism and that there is no Western ownership of them. While liberalism has been and can still be a foil for hegemony, it is ultimately an open source, used by actors all over the world.

Secondly, I will highlight two major critiques that post- and de-colonial authors, but also other critical authors, have made about liberalism and liberal constitutionalism and ask whether these critiques result in a conceptual incompatibility between liberal constitutionalism and these decolonial or progressive positions. I reject the assumption of incompatibility. Instead, I argue that constitutionalists should take seriously the challenges posed by decolonial critiques and use them to create fairer constitutional systems.

This leads to my third and last observation, which describes a path forward for legal scholarship. I will argue for a Southern turn in comparative legal scholarship and for slow comparison. We need a much more foundational engagement and theorizing of the Southern experiences of constitutionalism. This can make visible the problematic promises of liberal constitutionalism and address their political and economic foundations in constitutional law. A central path to do so can be a slowed-down, multilingual and decentered approach to constitutional scholarship and law.

All in all, in this Editorial I suggest that studying the contestations of liberalism from a Southern perspective is especially productive. As matters are actually quite entangled, what looks like a Southern or postcolonial critique might be equally relevant in Europe and elsewhere too.

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Published on July 28, 2022
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Protection of Constitutional Identity as a Legitimate Aim: Savickis and Others v. Latvia in the European Court of Human Rights

Ignatius Yordan Nugraha, PhD Research Fellow, Hasselt University

On 9 June 2022, the Grand Chamber of the European Court of Human Rights (ECtHR) pronounced its judgment in the case of Savickis and Others v. Latvia, which concerns differential treatment between Latvian citizens and “permanently resident non-citizens” (nepilsoņi) with regard to the calculation of pension. The notability of this case cannot be overstated; as far as I am concerned, this is the first time that an international human rights body or tribunal recognizes “protection of constitutional identity” as a legitimate aim for differential treatment. This post is intended to briefly reflect on this development and its potential implication for the future of human rights adjudication.

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Published on July 27, 2022
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ICON Volume 20, Issue 1: Table of Contents

[Editor’s Note: For the benefit of ICONnect readers, the Table of Contents to ICON’s new issue provides hyperlinks to the articles and their abstracts online.]

Volume 20 Issue 1

Table of Contents

Editorial

Editorial Reflection

Gráinne de Búrca, Poland and Hungary’s EU membership: On not confronting authoritarian governments

Afterword: Karen J. Alter and Her Critics

Doreen Lustig, The Vedanta challenge to multilateralism: Piercing the boundaries of the global legal order—Afterword to the Foreword by Karen Alter

Sergio Puig, The fatigue of multilateralism: A new hope for international law—Afterword to the Foreword by Karen Alter

Gregory Shaffer, Capitalism, international law, race, and China’s rise: Afterword to the Foreword by Karen Alter

Ntina Tzouvala, Global capitalism and law, and where to find them: Afterword to the Foreword by Karen Alter

Antoine Vauchez, In the Moëbius strip of global economic law: Afterword to the Foreword by Karen Alter

Karen J. Alter, How to change the operating system of global capitalism: A rejoinder

Articles

Udit Bhatia, Indirect elections as a constitutional device of epistocracy

Miles Jackson, Judicial avoidance at the European Court of Human Rights: Institutional authority, the procedural turn, and docket control

Adam Chilton and Mila Versteeg, Small-c constitutional rights

Thana C. de Campos-Rudinsky and Mariana Canales, Global health governance and the principle of subsidiarity: In defense of a robust decentralization approach

William Partlett, Crown-Presidentialism

Marcus Teo, Constitutional civil-military dynamics in Southeast Asia

Symposium: Football Feminism

Michele Krech and Joseph H. H. Weiler, Football feminism: Global governance perspectives

Antoine Duval, Taking feminism beyond the state: FIFA as a transnational battleground for feminist legal critique

Daniela Heerdt and Nadia Bernaz, Elements for FIFA’s feminist transformation: The case for indicators on football and women’s rights

Claire Poppelwell-Scevak, The gender pay gap: How FIFA dropped the ball

María Ximena Dávila, Nina Chaparro, and Nelson Camilo Sánchez, Rights-based constitutionalism and gender justice in Colombian women’s soccer

Amée Bryan, A view from the top: An examination of postfeminist sensibilities in women leaders’ constructions of success and responses to gender inequality in English football

Critical Review of Governance

Oran Doyle and Rachael Walsh, Constitutional amendment and public will formation: Deliberative mini-publics as a tool for consensus democracy

Critical Review of Jurisprudence

Simon Butt and Prayekti Murharjanti, What constitutes compliance? Legislative responses to Constitutional Court decisions in Indonesia

Stefano Osella, Reinforcing the binary and disciplining the subject: The constitutional right to gender recognition in the Italian case law

ICON: Debate!

Nico Krisch, Entangled legalities in the postnational space

Jan Klabbers, Dystopian legalities: A reply to Nico Krisch

Sanne Taekema, Navigating law’s complexities: Concepts for postnational law—A reply to Nico Krisch

Book Reviews

Joelle Grogan, Review of Miguel Poiares Maduro and Paul W. Kahn (eds). Democracy in Times of Pandemic: Different Futures Imagined

Maciej Krogel, Review of Camila Vergara, Systemic Corruption: Constitutional Ideas for an Anti-Oligarchic Republic

Davide Paris, Review of Giacomo Delledonne. Costituzione e legge elettorale. Un percorso comparatistico nello Stato costituzionale europeo [Constitution and electoral law. A comparative journey in the European constitutional State]

Dinesha Samararatne, Review of Philipp Dann, Michael Riegner and Maxim Bonnemann (eds), The Global South and Comparative Constitutional Law

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Published on July 26, 2022
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What’s New in Public Law


Anubhav Kumar, Advocate & Researcher, Supreme Court of India 


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. India’s Supreme Court expands scope of abortion law to allow single woman to end 24-week pregnancy.
  2. Supreme Court to issue separate rulings on affirmative action in college admissions.
  3. Supreme Court of Canada rules on scope of Charter right to counsel when in police detention
  4. Bulgarian Constitutional Court strikes down appointment of utilities regulator chief
  5. South Korean Constitutional court bars mobile carriers from sharing public’s data with authorities
  6. Constitutional Court dismisses appeal in the allocation of adequate and equitable police resources

In the News

  1. Former US President, Donald Trump’s ex-adviser Bannon convicted of contempt of U.S. Congress.
  2. Indonesia’s Constitutional court rejects call to legalise medicinal marijuana
  3. Lawyers for Busisiwe Mkhwebane have write to President Cyril Ramaphosa to have him testify before Parliament’s Section 194 inquiry.
  4. Hundreds protest against Tunisia draft constitution as vote looms
  5. Supreme Court blocks Biden immigration policy on deportation.

New Scholarship

  1. David Schultz and Jurij Toplak, Routledge Handbook of Election Law ( 2022) (exploring constitutional and legal aspects of elections and electoral disputes in Europe, Asia, North and South America, Africa and Australia)
  2. Lydia Tiede, Judicial Vetoes Decision-making on Mixed Selection Constitutional Courts (2022) (arguing that, under mixed selection, institutions choose different types of judges who represent different approaches to constitutional adjudication and thus have different propensities for striking down laws.)
  3. Vasabjit Banarjee and Sean P Webeck, Civil–Military Relations: Through a Perilous Lens (2022) (On what can we learn about civil-military relations by seeking to better understand the relationship between political institutions and the politicization of the military and argue that this accounts for the perils that exist within separation of powers (i.e., presidential) systems)
  4. Alexa Z. Chew and Rachel Gurvich, Saying the Quiet Parts Out Loud: Teaching Students How Law School Works (2022) (A teaching method as response to the disconnect law students noticed in curricula of law schools in terms of racial and other inequalities )
  5. Penelope Andrews, A Commission on Recognition and Reconstruction for the United States: Inspirational or Illusory? (2022) (Exploring the idea to establish a Commission on Recognition and Reconstruction (CRR) to comprehensively confront the ongoing challenges to racial justice in the US and envisaging the CRR as an adjunct to, and not a replacement for, the several measures currently being undertaken in law and policy to address these challenges.)
  6. Ferran Requejo, Marc Sanjaume-Calvet, Defensive Federalism Protecting Territorial Minorities from the “Tyranny of the Majority” (Forthcoming) (exploring the concept of defensive federalism as a protection of self- government against the “tyranny of the majority”)

Calls for Papers and Announcement

  1. The Hertie School invites applications and nominations for the Michael Endres Visiting Professorship for the Academic Year 2023/24 starting Sept 2023. Deadline is 1 Sept 2022.
  2. The Charles and Louise Travers Department of Political Science in the College of Letters and Science at the University of California, Berkeley invites applications for a full-time tenure-track Assistant Professor faculty position in political science, with preference for scholars who work in the areas of: Women and Politics, Public Law, Environmental Politics, IR, Formal Theory, Chinese Politics, or with a focus on institutions.
  3. Dickson Poon School of Law, King’s College London calls for scholars to participate in a sustained 3 week interdisciplinary and international conversation on equality, law and social justice to be held in London from 19th June to 9th July 2023. Details are available here.
  4. The “XVII. International Constitutional Law and Legal Institutions Conference” invites participation of leading academic scientists, researchers and scholars in the domain of interest from around the world to submit original research contributions for its conference to be held on January 16-17, 2023 Zurich, Switzerland
  5. Applications are invited from eligible candidates for the Commonwealth Professional Fellowships 2022-23. Details are available here.

Elsewhere Online

  1. Samer Alnasir, Iraq Urgently Needs a Real Constitution, IACL-AIDC Blog
  2. Marko Milanovic, Assessing the Authority of the ICRC Customary IHL Study, EJIL Talk
  3. Callixte Kavuro, Gender Inequality: The Vulnerabilities of Women under the Asylum System, African Law Matters
  4. Lewis Graham, Empirical work in Judicial Review: A rejoinder, UK Constitutional Law Association
  5. Dinesha Samararatne, The People in the Palace, Verfassungsblog
  6. Christine Savino, The Increased Imperative for International Law Protections Regarding Climate Induced Migration, Oxford Human Rights Hub
  7. David Renton, Why the law alone won’t save us – or the planet, Open Democracy
  8. Anushka Pardikar, Workplace harassment: Sensitization on PoSH act isn’t a priority for government institutes, shows RTI reply, The Analysis
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Published on July 25, 2022
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The Taliban and the Fall of Afghanistan’s Constitutional Tradition

–Shamshad Pasarlay (Visiting Lecturer, The University of Chicago Law School)

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

The fall of the Islamic Republic of Afghanistan in August 2021 marked yet another abrupt rupture in political power in the country’s long and tumultuous history. The new de facto Taliban regime quickly dismantled democratic institutions established under the 2004 Constitution and are on path to impose upon the country an entirely different, autocratic constitutional regime. Sadly, Afghanistan is no stranger to abrupt political ruptures. In fact, the country’s modern history is beset with violent regime changes and armed conflict. Over the past century, each violent break in political continuity in Afghanistan has produced a new constitution, but the basic building blocks of the country’s constitutional order have remained largely unscathed. Put differently, Afghanistan’s many constitutions have remained faithful to the basic structure and the core identity of the country’s constitutional order even as the making of these constitutions has hardly been divorced from abrupt swings in political power.[1]

Take the 2004 constitution of Afghanistan as an example. That document was ratified at the dawn of a new era with massive international involvement, but it did not betray the country’s core constitutional identity. In fact, the 2004 Constitution “was largely based on [Afghanistan’s] 1964 constitution.”[2] The 1964 Constitution, itself, was written under the shadow of the country’s earlier monarchical constitutions, but it made explicit some principles that had been implicit in the practices and conventions that emerged during those early constitutional orders. Although the 2004 Constitution codified certain further changes, those alteration can, at best, be viewed as what scholars have described as “continuous changes,” meaning that they were constitutional modifications that remained faithful to the core identity and the basic structure of the constitutional order.[3] For example, the 1964 basic law proclaimed Islam as the “sacred religion of Afghanistan” and required that state legislation should not contradict the “basics of Islam.” It declared further that the norms of the Hanafi fiqh (Islamic law as developed over the century by scholars associated with the Hanafi school) would be residual, applied in cases before courts if (and only if) statutory (state) law provided no guidance. The 2004 Constitution borrowed these same provisions from the 1964 basic law without any notable alternations. Further, constitutional continuity before the fall of the Islamic Republic last summer was visible in constitutional norms that defined the prerogatives of the head of the state, the fundamental rights and freedoms of citizens, the organization and jurisdiction of courts as well as the structure and prerogatives of the legislature although some peripheral elements continued to change and evolve.[4]

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Published on July 22, 2022
Author:          Filed under: Analysis