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I·CONnect

Blog of the International Journal of Constitutional Law

10 Good Reads

J. H. H. Weiler, New York University School of Law; Co-Editor-in-Chief, I·CON

It is the time of year once more when I publish my pick from some of the books that came my way since my last “Good Reads” listing. These are not book reviews in the classical and rigorous sense of the word, for which you should turn to our Book Review section. I do not attempt to analyze or critique, but rather to explain why the books appealed to me and why I think you, too, may find them not only well worth reading but enjoyable, good reads. 

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Published on December 9, 2019
Author:          Filed under: Editorials
 

What’s New in Public Law


Maja Sahadžić, Research Fellow, University of Antwerp

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Azerbaijan adopted an appeal to the President on dissolving the parliament and holding early elections.
  2. The Constitutional Court of Germany upheld the right of a man convicted of murder to have his name removed from the internet.
  3. The Supreme Court of India put on hold the elections for local bodies in nine new districts of Tamil Nadu for complying with legal formalities.
  4. The Constitutional Court of Turkey ruled the freedom of expression of a renowned sculptor, whose monument was destroyed, had been violated.
  5. The Supreme Court of Canada declined to hear the appeal of an ex-Nazi death squad member to restore his Canadian citizenship.
  6. The Constitutional Tribunal of Peru approved a request to free the opposition leader Keiko Fujimori from preliminary detention while she is investigated for alleged corruption.
  7. The Constitutional Court of Zambia dismissed the petition on Bill 10 for being prematurely before the Court and lack of merit.
  8. The Constitutional Court of Malawi concluded hearing of the case of the presidential election.

In the News

  1. The Maldivian parliament removed justice from the Supreme Court completing an overhaul of the court.
  2. The Iraqi parliament accepted the resignation of the Iraqi prime minister.
  3. The president of the United States of America signed into law a bill that supports pro-democracy protesters in Hong Kong.
  4. The Indonesian president rejected proposals to amend the constitution to end direct elections for the presidency.
  5. The International Criminal Court received a request to investigate human rights crimes in Brazil.
  6. The European Court of Justice ruled that the term “Balsamico” is not a food designation protected under the European Union’s geographical food designation rules.
  7. The Albanian parliament elected prosecutor general as part of judicial reforms sought by the West intended to kick out corrupt judges.
  8. The president of Slovakia asked the Constitutional Court to strike down a ban on publishing opinion polls ahead of elections.

New Scholarship

  1. Giuseppe Martinico and Giorgio Repetto, Fundamental Rights and Constitutional Duels in Europe: An Italian Perspective on Case 269/2017 of the Italian Constitutional Court and Its Aftermath, European Constitutional Law Review (2019) (offering an updated and critical view on the latest developments of judicial dialogue in Europe).
  2. Saskia Ruth-Lovell and Maria Spirova (eds.), Clientelism and Democratic Representation in Comparative Perspective (2019) (developing a theoretical framework to study the consequences of clientelism for democratic representation).
  3. Felipe de Mendonça Lope, Dissent Aversion and Sequential Voting in the Brazilian Supreme Court, Journal of Empirical Legal Studies (2019) (studying evidence of dissent aversion in the Brazilian Supreme Court).
  4. Hassan Jabareen, The Paradigm of Originalism: Israeli Constitutional Law and Legal Thought, Israel Law Review (2019) (challenging the main claims about originalism in American legal thought).
  5. Joshua C. Gellers and Chris Jeffords, Environmental rights in the Asia Pacific region: taking stock and assessing impacts, Asia Pacific Journal of Environmental Law (2019) (statistically analyzing the impact of environmental rights in the Asia Pacific and finding strong improvements in ecosystem vitality and weak reductions in measures of environmental health, along with inter-regional differences).
  6. Anne Twomey (ed.) and William Pitt Cobbett, The Constitution and Government of Australia 1788-1919 (2019) (publishing for the first time a century-old manuscript that provides a detailed analysis of the Australian Constitution as interpreted by the first High Court of Australia).
  7. Petra Ahrens and Lise Rolandsen Agustín (eds.), Gendering the European Parliament (2019) (analyzing the European Parliament by studying its gender perspective and addressing changes and continuities).
  8. Joshua C. Gellers and Chris Jeffords, Environmental rights in the Asia Pacific region: taking stock and assessing impacts, Asia Pacific Journal of Environmental Law (2019) (using statistical techniques in order to determine what, if any, correlation exists between environmental rights and environmental performance in the Asia Pacific region).
  9. Joshua Braver, The Myth of Recurrent Court-Packing (2019) (arguing that although the U.S. Supreme Court’s size has changed seven times, court-packing would nearly, if not completely, novel in American history)

Call for Papers and Announcements

  1. The Jean Monnet Center at NYU School of Law is currently accepting applications for its Emile Noël Fellowship Program for AY 2020/21. Limited number of fellowships are available. The deadline is January 15, 2020.  
  2. The Centre for International and Public Law at the Australian National University organizes the ANU Law 60th Anniversary Conference: Public Law and Inequality in Canberra on 8-9 December 2020. The deadline for submissions is 2 March 2020.
  3. The University of Oslo welcomes submissions for the Conference on Empirical Legal Studies – Europe 2020 in Oslo on 11-12 June 2020. The deadline for submissions is 15 February 2020.
  4. The Dublin Law and Politics Review invite abstracts for the Annual Research Conference on the Rule of Law and Populism and Sustainable Finance in Dublin on 24-25 March 2020. The deadline for abstracts is 20 January 2020.
  5. The Department of Political Science at the University of Zurich invites applications for a postdoctoral position in Political Institutions and European Politics. The deadline for applications is 15 January 2020.
  6. Central European University announces the ninth annual European Award for Excellence in Teaching in the Social Sciences and Humanities. The deadline for applications is 31 January 2020.
  7. European Consortium for Political Research organizes the 9th Winter School in Methods and Techniques in Bamberg on 14-21 February 2020. The deadline for applications is 12 December 2019.
  8. The Stockholm Center for International Law and Justice welcomes applications for the 6th Annual Conference of the European Society of International Law in Stockholm on 10-12 September 2020. The deadline for submissions is 31 January 2020.

Elsewhere Online

  1. Martina Trettel, What is going on with Bougainville (the island in the Pacific Ocean, not the flower)?, Eureka!.
  2. Simon Drugda, Behaviour of the Far-Right in the Slovak Parliament: Constitutional Amendment as a PR Tool, BRIDGE
  3. Gabriel Toggenburg, The Charter of Fundamental Rights: ‘All EU-r rights’ in 54 provisions, Eureka!.
  4. Zemelak Ayitenew Ayele, EU-Ethiopia: Democratising Ethiopia Together, too?, Eureka!.
  5. Janet McLean, Attorney-General v Taylor: An Example of the Cautious, Incremental and ‘Common Law’ Approach to Constitutional Change in New Zealand, IACL-AIDC BLOG
  6. Jaakko Husa, ‘One Country, Two Systems’ – Learning from the Past, IACL-AIDC BLOG
  7. Moussa Diop, Senegal and its national political dialogue in a time of inclusive democracy, ConstitutionNet.
  8. Bal Kama, Bougainville’s Independence Referendum and Constitutional Implications for Papua New Guinea, ConstitutionNet.
  9. Adam Perry, Enforcing Principles, Enforcing Conventions, UK Constitutional Law Association.
  10. Ulrike Elteste, Kristof Van Quathem, and Nicholas Shepherd, German Constitutional Court Reshapes “Right to be Forgotten” and Expands Its Oversight of Human Rights Violations, Lexology.
  11. Linda Greenhouse, Gunfight at the Supreme Court, The New York Times.
  12. Claire Zalla, Is water the key to peace between Palestine and Israel?, Yale Macmillan Center.
  13. İlayda Eskitaşçıoğlu, Access to Menstrual Products is a Constitutional Right. Period., Verfassungsblog.
  14. Alice Donald, Time for Strasbourg to Open its Doors to Turkey’s Purged Public Servants, Verfassungsblog.
  15. Justin Borg-Barthet, A Captured State, Why the EU has to Intervene Quickly in the Rule of Law Crisis in Malta, Verfassungsblog.
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Published on December 9, 2019
Author:          Filed under: Developments
 

The Coup d’État that Wasn’t. Does the Latest Revolt in Bolivia Reveal Limitations of a Concept or the Failure of Scholars Using it?

Franz Xavier Barrios-Suvelza, Erfurt University 

The latest events in Bolivia unleashed a vivid polemic in the media on whether the unconventional interruption of Evo Morales’ mandate as of this 10th of November was a coup d’État. I claim that the Bolivian case reveals the need to rethink whether the category coup d’État can be reasonably applied to cases in which the ruler being ousted has himself broken constitutional rules. In most accounts the idea of a coup d’État implies an interruption of the legal order. Admittedly, interrupting the leadership of the executive is the most telling trait of this sudden change of the political setting. Yet, a coup d’État itself is part of something bigger. Namely, the break of a specific state of legality including related constitutional rules. If the coup d’État means damaging a specific prevailing state legality, does it make sense to use this concept for describing the case of Evo Morales, if the interruption of his mandate did not break but repair what was already broken in legal and constitutional terms? I think we need a different concept to avoid conceptual stretching. So, let’s not speak of a coup, but of a remboîtement d’État.

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Published on December 8, 2019
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Lack of Transparency in Selection of the Danish Ombudsman: Old Habits Die Hard


Simon Drugda, PhD Candidate at the University of Copenhagen

Danish Parliamentary Ombudsman Jørgen Steen Sørensen resigned from office on November 1 to take on the job of a Supreme Court judge. Sørensen had announced his intention to resign on short notice because of the extraordinary circumstance of his audition for a Supreme Court judge.[1] However, with the Parliament shut until October because of the summer recess, MPs struggled to find the new Ombudsman. The Parliament eventually filled the vacancy with a month delay,[2] but throughout this time, it was not clear who was up in the running, how to apply for the position, or when the decision on the new Ombudsman will be made.

The delay was also due to the fact that the Standing Committee of the Parliament on Legal Affairs (LAC), which is tasked with authority to propose a suitable candidate for an Ombudsman to the Parliament, had a hard time reaching an agreement. The Committee, therefore, decided to appoint a temporary Ombudsman in the interim, who served the whole month of November 2019. The Ombudsman proper will take office on December 1.[3]

The episode showed that the selection of an Ombudsman in Denmark is unwieldy and somewhat obscure, especially when compared to appointments to other public offices and comparative best practice. This contribution examines the procedure for selection of the Danish Parliamentary Ombudsman, taking the recently adopted “Venice Principles on the Protection and Promotion of the Ombudsman Institution” as a benchmark.[4] The selection process of the Danish Ombudsman could be modernised at least in one important way: the process should be opened up to allow for external applications that would be transparently processed and evaluated.[5]

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Published on December 7, 2019
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The Post-Soviet Constitutional Rights Community

William Partlett, Melbourne Law School

[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 2019, see here.]

To this point, most of my posts have focused on the top-down construction of post-Soviet constitutionalism. For instance, I have focused on the success of judicial review in constitutional courts.   In this post (my final one), I intend to focus on a different factor in the success of post-Soviet constitutionalism: bottom-up pressure from non-governmental, human rights organizations and lawyers (what I call the “constitutional rights community”). As Eva Pils describes in her work on China, these individuals and organizations are critical sites of activity in shaping both the direction and social practices of post-Soviet constitutional justice. 

There is a vast diversity of commitments to constitutionalism in the post-Soviet states.  On one hand, the Baltic states (Estonia, Latvia, and Lithuania) have built robust systems of constitutional law that have resisted much of the backsliding taking place in other parts of Eastern Europe.  On the other hand, similar textual commitments in constitutions in other parts of the post-Soviet space have remained unimplemented.  For instance, in parts of Central Asia and the Caucasus, paternalistic “national leaders” have ignored constitutional texts amidst calls for a return to pre-communist unity, harmony, and patrimonial leadership. In Turkmenistan, for instance, the first President—calling himself Turkmenbashi—renamed the month of January after himself and made an entire mythology of his life mandatory in schools. In other countries, official mythologies of national identity have been introduced.  Amidst this personalization of power, written constitutional texts have mattered little.  

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Published on December 4, 2019
Author:          Filed under: Analysis
 

What’s New in Public Law


–Nausica Palazzo, Post-Doctoral Researcher, 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 Supreme Court of India declared that states are failing to uphold citizens’ right to live free of pollution and that a persistent failure will entail a duty to compensate citizens.
  2. The Constitutional Court of Turkey found a violation of a sculptor’s freedom of expression when local authorities removed a statue on the Turkish-Armenian conflict upon Erdogan called it an “abomination.”
  3. The Constitutional Court of Zambia concluded that it lacks the power to assess compliance with the constitution of constitutional amendments.
  4. The Supreme Court of Pakistan has granted a six-month extension to the term of the Army head, after initially suspending it on constitutional grounds.
  5. The Italian Constitutional Court has released its opinion allowing assisted dying in extreme circumstances.
  6. The US Supreme Court has declined to review major issues, such as the constitutionality of campaign contribution limits in Alaska.
  7. Poland’s Parliament elected three controversial justices to the constitutional court, including the “architect” of laws blamed to erode the rule of law in the EU.
  8. The US Supreme Court has blocked a subpoena from the House aimed at forcing the disclosure of President Trump’s financial records. 

In the News

  1. The European Commission gave the green light to the European Commission lead by Ursula von der Leyen.
  2. The Greek Parliament approved a comprehensive set of constitutional amendments affecting 28 articles of the constitution, including the right to vote of Greeks living in a diaspora.
  3. Bolivia passed a law which annuls the results of last October’s ballot, paving the way for new elections.
  4. The Russian Parliament approved a restrictive law according to which only persons qualifying as “foreign agents” can communicate with foreign media outlets.
  5. The Prime Minister of Israel is indicted on charges of fraud, bribery and breach of trust.
  6. Trump signed the Hong Kong Human Rights Act allowing sanctions to be imposed on individuals undermining freedoms and autonomy in Hong Kong.
  7. The Council of Europe (Framework of the ECHR) urged the Hungarian government to amend a bill that would undermine the independence of the judiciary.
  8. The Romanian Pro-EU president was re-elected by a landslide.
  9. The European Parliament is debating a motion to declare a “climate emergency.”

New Scholarship

  1. Janina Boughey, Human Rights and Judicial Review in Australia and Canada: The Newest Despotism? (Hart Publishing, 2019) (providing an in-depth analysis of the interaction between administrative law and human rights law in Australia and Canada)
  2. Rosa Celorio, Discrimination and the Regional Human Rights Protection Systems: The Enigma of Effectiveness, 40 University of Pennsylvania Journal of International Law (2019) (comparing the approach to discrimination issues of the regional human rights protection systems in the Americas and Europe, and examining their response to discrimination through the lens of effectiveness)
  3. Veronica Corcodel, Modern Law and Otherness: The Dynamics of Inclusion and Exclusion in Comparative Legal Thought (Edward Elgar Publishing, 2019) (aiming at providing a greater understanding of how the “non-West” is constructed in Euro-American comparative law)
  4. Dominique Custos, Théorie de l’exécutif unitaire et contrôle présidentiel des agences indépendantes aux États-Unis, 170 Revue Française d’Administration Publique (2019) (exploring the most recent trends in the presidential oversight of independent agencies in the United States) [in French]
  5. Kevin E. Davis, Corruption as a Violation of International Human Rights: A Reply to Anne Peters, 29 European Journal of International Law (2019) (arguing that the key reason for treating corruption as a human rights violation is the possibility to produce information about the incidence and moral significance of corruption)
  6. Martti Koskenniemi, International Law and the Far Right: Reflections on Law and Cynicism (Fourth Annual T.M.C. Asser Lecture) (Asser Press, 2019) (addressing the question of how to respond to the “cultural war” against the values associated with the “international” or the “global”)
  7. Marjan Peeters & Mariolina Eliantonio (eds.), Research Handbook on EU Environmental Law (Edward Elgar Publishing, 2020) (discussing the EU role in steering towards environmentally friendly behavior, and the civil society’s use of environmental procedural rights)
  8. Nicholas Stephanopoulos, The Anti-Carolene Court, Supreme Court Review (forthcoming, 2019) (arguing that the last decision of the Supreme Court on gerrymandering betrays the famous instruction of the Court in Carolene to intervene to correct flaws in the political process)
  9. Susan M. Sterett and Lee D. Walker (eds.), Research Handbook on Law and Courts (Elgar, 2019) (offering a systematic analysis of new work on courts as governing institutions, by covering topics such as Courts’ centrality to governance, the push for diversity in their composition, and the impact of the digitalization of records)

Calls for Papers and Announcements

  1. The Vienna Journal on International Constitutional Law accepts submissions for a special symposium issue on any subject related to constitutional courts in general and the Austrian Constitutional Court in particular (Guest Editor: Yaniv Roznai). The deadline for submissions is January 1, 2020.
  2. The Humboldt University, Berlin, and the Graduate Institute of International and Development Studies, Geneva, invite papers for a conference on “Multiple Legalities: Conflict and Entanglement in the Global Legal Order” to be held on July 6-8, 2020 in Berlin. Abstracts of no more than 400 words should be sent to francesco.corradini@graduateinstitute.ch by January 15, 2020.
  3. The Nordic Political Science Association has issued a call for papers for “The populist radical right and its consequences for liberal democracy” workshop to be held in Reykjavik, on August 11-14, 2020. The deadline for abstracts is December 15, 2019.
  4. The Revista Temas Sociológicos, published by the Catholic University Silva Henríquez School of Sociology, invites articles for its 26th edition, whose dossier section will be dedicated to a reflection on “Law and Justice: Towards a Sociology of State Power.” The deadline is December 31, 2019.
  5. The University of Leiden is accepting applications for its summer schools, including courses on international arbitration, international humanitarian law, and international criminal law. The deadline to apply is May 1, 2020.
  6. The Dublin Law and Politics Review invites submissions for its annual research conference on “Rule of Law and Populism and Sustainable Finance” to be held in Dublin on March 24-25, 2020. The Deadline is January 20, 2020.
  7. The Europe-Canada Network has launched the Young Scholar Essay Contest “Populism – a corrective or a threat to democracy?” open to young scholars (within 5 years after award of the PhD) based at Canadian universities. The deadline to apply is January 30, 2020.
  8. The EUI team working at the GREASE project on “Radicalisation, Secularism and the Governance of Religion” seeks to recruit a German-speaking researcher to conduct qualitative research on religiously inspired radicalization.
  9. The Revue Française d’Administration Publique published by the École Nationale d’Administration released its latest issue, which focuses on the impact of the Trump Presidency on public administration (“The US public administration in crises?”).

Elsewhere Online

  1. Felix-Anselm Van Lier, Chile’s Constitutional Moment, Open Democracy
  2. Philipp Renninger, Chinese (Anti-)­Constitutionalism, Verfassungsblog
  3. Mark Joseph Stern, Brett Kavanaugh Is Ready to Join the Supreme Court’s Conservatives to Tear Down Key Federal Regulations, Slate
  4. Copyright wounds to be reopened in EU top court: Judges are asked whether Google’s YouTube can be held legally responsible for copyright infringement, Politico
  5. Episode 15: Inside the Pentagon with former Secretary of Defense Ash Carter (The American Society of International Law’s podcast “International Law Behind the Headlines”), ASIL website
  6. John Morijn & Barbara Grabowska-Moroz, Supporting Wojciech Sadurski in a Warsaw Courtroom, Verfassungsblog
  7. Aakarsh Banyal, Constitutional Redesign of the Federal Balance: India and Article 370, IACL-AIDC BLOG
  8. David Torrance, ‘Taking the border out of politics’ – the Northern Ireland referendum of March 1973, The Constitution Unit
  9. Ganesh Sahathevan, Malaysia’s Court of Appeal says Menteris Besar (and Prime Ministers) can be removed with show of SDS, and any legal challenge will be rejected on the basis that it would be a futile “academic” exercise, Realpolitikasia
  10.  Lisa Hilbink & Valentina Salas, Path to a New Constitution in Chile: How the Unthinkable Became the Inescapable, ConstitutionNet
  11. Balingene Kahombo, The Gambia and the Rohingya’s nightmare: which opportunity for individual criminal accountability after the possible ICJ decision against Myanmar for genocide?, The Völkerrechtsblog
  12.  Eugene Volokh, “Meet Me in the Middle” Podcast on the Second Amendment, The Volokh Conspiracy
  13.  Andrew Koppelman, Conservatives Have a New Defense for Anti-Gay Discrimination, The American Prospect
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Published on December 2, 2019
Author:          Filed under: Developments
 

District Bar Association, Rawalpindi v. Federation of Pakistan: Marbury-Style Judicial Empowerment?

Neil Modi, Visiting Researcher, Georgetown University Law Center

The Pakistani Supreme Court’s decision in District Bar Association, Rawalpindi v. Federation of Pakistan (2015) serves as a good illustration of an attempt of judicial self-empowerment, akin to a Marbury v. Madison-style moment.[1] By this I mean that the strategy adopted by the court in this case bears unique similarities to the one adopted by Chief Justice Marshall in Marbury v. Madison (1803)[2] where he exhibited “a willingness to yield to the will of other branches of government, while at the same time creating a space for the Court to provide constitutional interpretation on the actions taken by other branches of government.”[3]

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Published on December 1, 2019
Author:          Filed under: Analysis
 

Deprivation of Citizenship for Terrorism: First Application in Switzerland


–Rekha Oleschak-Pillai, Institute of Federalism, University of Fribourg

In a quietly worded press release on 11 September 2019, the Swiss Federal Office for Migration (SEM) announced that it had revoked the Swiss citizenship of a dual citizen for the first time.[1] Revocation of citizenship of a second person is currently underway[2]. Switzerland has thus joined a group of nations that now use citizenship deprivation as a counter-terrorism tool.

Citizenship deprivation is based on Article 42 of the Citizenship Law, which allows the SEM to revoke the Swiss citizenship of a dual national if the person’s conduct is “seriously detrimental to the interests or the reputation of Switzerland”. What constitutes such conduct is outlined in Article 30 of the accompanying Ordinance on Swiss Citizenship, which includes inter alia, conviction for crimes listed including those related to terrorism, crimes against humanity, war crimes and organised crime. The revocation of citizenship requires a criminal conviction except in cases where the crimes were carried out in the territory of a state, which is unable or unwilling to prosecute.

In the first case, the person had been previously convicted by the Federal Criminal Court for propaganda and recruitment to the Al-Nusra Front. The second case of citizenship deprivation concerns a woman holding three nationalities, Swiss, French and Tunisian. Here there appears to be no criminal conviction (yet). She is reputed to be in custody of Kurdish forces in Syria, which would be considered territory of a state, which is unable or unwilling to prosecute, thus doing away with the requirement of criminal conviction. She is with her three children, it is unclear what the status of the children is, will be and if they ever will be repatriated to Switzerland.

Why is this problematic?

Citizenship deprivation of this kind is problematic for several reasons. First of all, such deprivation regimes create a differentiation among citizens, those who are dual nationals and those who are not. While citizenship deprivation as a measure is not inconsistent with the general prohibition on deprivation of nationality as set out in the 1961 Convention on the Reduction of Statelessness,[3] the question that arises is whether such differential treatment can be justified under the equality and non-discrimination provisions of the constitution as well as the European Convention on Human Rights.  Further, this also needs to be considered in light of the prevailing atmosphere of political campaigns aimed against foreigners and people of foreign origin. The constitutional amendment adopted through the popular initiative “Expulsion Initiative” and associated legal framework has already created two classes of the population, those who can be expelled (non-citizens) and whose who cannot (citizens). And now we have two classes of citizens, those whose citizenship can be revoked (dual nationals) and ultimately expelled and those whose citizenship cannot be revoked.

The second problematic aspect is procedural. In the second case mentioned above, the SEM published the notification to revoke citizenship in the public gazette. Since the person was not present in the country, the notification occurred in absentia. There is a right to appeal, however, factually this would certainly not be used by person who is not present in the territory.

Another issue that needs to be raised is the prohibition on States under international law to prevent arbitrary deprivation of nationality. Any deprivation of nationality must meet certain conditions in order to comply with the prohibition on arbitrary deprivation of nationality. These conditions include serving a legitimate purpose, being the least intrusive instrument to achieve the desired result and being proportional to the interest to be protected. It is unclear if the undertaken measure would withstand the test, in particular, whether deprivation of nationality is the least intrusive instrument to achieve the desired result.

As Guy-Goodwin Gillhas pointed out, citizenship is not a privilege. Referring the Nottebohm case[4], he points out that “(F)rom the perspective of international law, an effective nationality flows from the facts of a social, lived attachment”. [5] The social circumstances, attachments, language all play in role in determining effective nationality. Having dual nationality does not necessarily mean that the person’s effective nationality is the one that he or she gets to retain.

Last but not least, such action is inconducive to global cooperation in fighting terrorism. The “not in my backyard” mentality can have severe consequences. If citizenship deprivation takes place when the person happens to be outside the country, this legally prevents the person from re-entering the territory. So, if several states start taking this approach, one could have a situation where no country takes responsibility for the “unwanted” among their citizens. Furthermore, this would result in a tug of war situation between countries trying to get rid of “unwanted persons”. This was exemplified by the recent announcement by the Turkish government that Turkey was going to send back captured Daesh members to their countries, notwithstanding citizenship deprivation.[6]

In the long run, dealing with unwanted citizens by depriving them of citizenship instead of dealing with them under existing criminal law provisions does not seem to be the solution towards fighting terrorism.

Suggested Citation: Rekha Oleschak-Pillai, Deprivation of Citizenship for Terrorism: First Application in Switzerland, Int’l J. Const. L. Blog, Nov. 29, 2019, at: http://www.iconnectblog.com/2019/11/deprivation-of-citizenship-for-terrorism:-first-application-in-switzerland


[1] https://www.sem.admin.ch/sem/de/home/aktuell/news/2019/2019-09-110.html

[2] https://www.swissinfo.ch/eng/citizenship_another-jihadist-suspect-set-to-lose-swiss-passport-/45318782

[3] https://www.unhcr.org/ibelong/wp-content/uploads/1961-Convention-on-the-reduction-of-Statelessness_ENG.pdf

[4] https://www.icj-cij.org/files/case-related/18/018-19550406-JUD-01-00-EN.pdf

[5] https://www.ejiltalk.org/statelessness-is-back-not-that-it-ever-went-away

[6] https://www.swissinfo.ch/eng/turkey-says-it-will-send-back-islamic-state-prisoners-even-if-citizenships-revoked/45344762

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Published on November 29, 2019
Author:          Filed under: Developments
 

Navigating Constitution Building and Political Transitions in Sri Lanka

Dian A H Shah, National University Singapore Faculty of Law

[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 2019, see here.]

On 17 November 2019, Sri Lanka emerged from its 8th presidential election with a new president and a new government regime. Gotabaya Rajapaksa, the Defense Secretary under Mahinda Rajapaksa’s administration, won the hard-fought election with 52.25% of votes, leaving his opponent trailing with only 41.99% of votes.[1] This stands in stark contrast to the 2015 presidential election – the election that triggered Sri Lanka’s return to democracy – where Maithripala Sirisena unexpectedly defeated Mahinda Rajapaksa by only a 3.7% margin. Armed with a solid electoral mandate, within days of his victory, Gotabaya announced the appointment of former President Mahinda Rajapaksa as the Prime Minister, following the resignation of Ranil Wickremesinghe who heads the opposing party, UNP. Although the Rajapaksa presidency is still in its early days, this appointment has triggered anxieties over the durability of the constitutional and democratic renovations that began in 2015.

In this post, I shall focus on Sri Lanka’s democratic experience with both backward and forward-looking reflections. This is because the Sri Lankan experience offers poignant lessons for countries in the region that have undergone or are undergoing political change (such as Malaysia), or even countries that are working their way through democratization and its attendant challenges. It is a story of missed opportunities amidst political power struggles, as well as small but crucial victories through incremental constitution-building.

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Published on November 27, 2019
Author:          Filed under: Analysis
 

ICON Book Review: Piotr Mikuli on Wojciech Sadurski’s “Poland’s Constitutional Breakdown”

[Editor’s Note: This book review by Piotr Mikuli of Wojciech Sadurski’s new book, Poland’s Constitutional Breakdown, is forthcoming in the next issue of ICON.]

Wojciech Sadurski. Poland’s Constitutional Breakdown. Oxford University Press, 2019. Pp. 304. ISBN 978-0198840503

The book’s title refers to the expression “constitutional breakdown”, which seems to reflect the author’s profound thoughts regarding the process of unconstitutional actions that one can observe in Poland following the accession to power of the Law and Justice Party (PiS). The mastery of this study lies in the excellent combination of the descriptive layer with general theoretical considerations. The author, describing the course of events, seeks to conceptualize the Polish case by referring to both older and more recent views of scholarship regarding the erosion of democracy and violations of the rule of law. In this sense, despite the personal tone, often verging on emotional, Sadurski’s work is a contribution of major significance to contemporary scholarship on constitutional law.

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Published on November 26, 2019
Author:          Filed under: Reviews