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I·CONnect

Blog of the International Journal of Constitutional Law

Citizens, Aliens and Aboriginal Australians – An Uncertain Constitutional Community

–Julian R. Murphy, Postgraduate Public Interest Fellow, Columbia Law School

Recent developments in Australian constitutional law suggest that the bounds of Australia’s constitutional community are currently unclear, and may well be at odds with the lived experience and beliefs of a significant portion of the Australian public. This post suggests two possible correctives: an “evolutionary” approach to constitutional interpretation informed by contemporary public understandings of the Australian community; or, in the alternative, a constitutional amendment.

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Published on October 19, 2018
Author:          Filed under: Analysis
 

Democratic Erosion and Militant Democracy

–Tom Ginsburg and Aziz Huq, The University of Chicago Law School

In 1937, the German political scientist Karl Loewenstein published a two-part article that coined the term militant democracy.[1]  Concerned with the inadequate democratic response to the rising threat of fascism, he called for a set of legislative and legal techniques that would allow democracy to defend itself against threats that emerge from within. “Constitutional scruples” he noted, “can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals.”

Loewenstein went on to catalogue techniques used by inter-war democracies to shield themselves from the rising threats of communism and fascism. These included banning subversive parties and movements; using emergency statutes to cripple threats once they materialized; proscribing private para-military groups, including party militias; preventing the abuse of parliamentary institutions by political extremists; bans on incitement and hate speech, including demonstrations whose only purpose was provocation; and protecting the civil service and armed forces from infiltration.  Many of these institutions informed constitutional design in postwar Europe. The region then abounded with carefully crafted emergency clauses, dignity clauses, unamendable provisions, and party bans.

One of the arguments in our new book, entitled “How to Save a Constitutional Democracy,” published this week, is that our comparative constitutional imagination has not moved on enough since Loewenstein’s time.  Today’s threat to liberal constitutional democracy, at least in its American and European heartland, are not a takeover by an explicitly fascist or overtly anti-democratic party, a military coup, or a communist-style revolution. Instead, the risk is that of slow erosion, with a number of small steps being taken, often through perfectly legal means, to undermine the quality of democracy.  This has significant implications for how we should fill our constitutional toolkit.

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Published on October 18, 2018
Author:          Filed under: Developments
 

What do “Constitutional Reforms” on the 30th Anniversary of the Brazilian Constitution Really Mean?

[Editor’s Note: This is the sixth and final entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Estefânia Maria de Queiroz Barboza, Federal University of Parana and International University Center (Uninter); Melina Girardi Fachin, Federal University of Parana

Like many contemporary democratic constitutions, the Brazilian Constitution establishes a normative framework for constitutional amendments seeking to follow the dynamics of social life. There is a fundamental aspect in the tension between the Constitution and time, which reproduces the one between democracy and constitutionalism: in order for the Constitution to last, does the amendment process need to change or to maintain the constitutional order?

On celebrating its 30th anniversary, the Brazilian Constitution has 99 amendments, a high rate in comparative perspective.

In such a scenario, the first difficult topic is to explain how a relatively rigid constitutional model, such as the Brazilian one, went so far in changing the Constitution. As a relatively rigid model, Brazilian Constitution has a specific and complex procedure to carry out those changes, requiring qualified majorities for its approval, which is much more difficult than the one for ordinary legislation. There are, in addition, circumstantial limits that refer to abnormal circumstances, when the Constitution cannot be amended, such as the state of emergency (in case of war, for example) or federal intervention.

Finally, there is still a barrier to parliamentary deliberation in certain subjects. These are the so-called unamendable or petrified clauses. Considering the substantive content of these provisions, Article 60, § 4 states that a proposal of amendment aiming to abolish the federative form of the State; the direct, secret, universal and periodic vote; the separation of powers; and individual rights and guarantees will not be a subject of deliberation.

All this rigidity and formality, restraining Parliament’s amending power, is justified in order to protect the hard-fought agreements embodied in the Constitution against the dangerous effect of opportunistic majorities. Such constraints are projected into the future in order to avoid contingent constitutional changes: allowing the adjustment of the Constitutional text as a living constitution, but at the same time, granting protection to fundamental constitutional choices that are the target of the legislative process of amendment.

From the arguments presented above it is clear that it was not the rigid model that changed, but the constitutional practice that allowed the modifications to occur.

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Constitutional Reforms in the Brazilian Constitution of 1988: Preservation Through Transformation?

[Editor’s Note: This is the fifth entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

–Vera Karam de Chueiri, Federal University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq); and Katya Kozicki, Federal University of Parana, Pontifical Catholic University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq)

Brazil has a relatively new Constitution that is the outcome of a process of negotiated transition. We would rather refer to our constitutionalism from 1988 on as progressive and strongly committed to democratic procedures and democratic outcomes, but this is just part of the narrative. In the last four years it has been severely attacked. Since the impeachment of former president Dilma Rousseff in 2015, Brazilian democratic constitutionalism has faced great challenges and another narrative has started to be written.

Constitutionalism and democracy are two clashing commitments which entail a kind of paradoxical relationship in theoretical and practical terms and there is no big news on that. Yet the bad news is that constitutionalism and democracy and its unavoidable paradox have suffered serious offensives, naturally disrupting our traditional legal and political narrative. Given that narrative, our argument is that, until President Dilma Rousseff’s impeachment, constitutional changes replicated the struggle over the meaning of the Constitution that took place in the National Constituent Assembly of 1987-88. After the impeachment, it is difficult to find a standard for constitutional changes as far as the government is not accountable to a Constitution equally enforced, independently adjudicated and consistent with international human rights norms and standards.

One could identify a standard of constitutional changes from 1992 to 2014, which means a high number of amendments (eighty-four amendments) done by the legislative branch (Deputy’s Chamber and Senate) and a relatively high number of changes done by the Brazilian Federal Supreme Court (STF). The Brazilian Constitution has one of the highest amendment rates in the world (3.8 from 1992 to 2014). It sounds counter-intuitive for most constitutional scholars that a detailed and comprehensive constitution like ours with relatively strict rules of amendment (article 60) would change that much, but the phenomenon has been explained well by many political scientists.

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Published on October 16, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional Law Professor at Universidad de La Sabana

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 Peru annulled the presidential pardon granted to former President Alberto Fujimori in December 2017.
  2. The Supreme Court of Canada ruled that the decision by the Parliament of Quebec to fire three security guards is not protected by the principle of parliamentary immunity. As a consequence, the fired former employees can file a grievance against the legislature.
  3. The Supreme Court of India dismissed a claim seeking to declare full statehood for Delhi.
  4. The UK Supreme Court held that a bakery’s owners’ refusal –grounded on religious reasons– to bake a cake supporting same-sex marriage, did not constitute discrimination.
  5. The Supreme Court of India directed the government to respond a public interest litigation initiated against Johnson & Johnson for the sale of alleged defective hip implants.
  6. The Chief Justice of the Supreme Court of Pakistan, Saqib Nisar, asked the Capital Development Authority (CDA) to investigate the Prime Minister’s residence expansion in the wake of allegations of illegal constructions in the Bani Gala area.
  7. The Constitutional Court of Malta upheld a lower court’s ruling that removed Deputy Police Commissioner Silvio Valletta as investigator of the murder of the journalist Daphne Caruana Galizia, due to serious doubts upon his impartiality.
  8. The Court of Cassation of France requested an advisory opinion to the European Court of Human Rights on the scope of parental rights of a family whose children were born with the assistance of gestational surrogacy.
  9. The Supreme Court of Pakistan heard an appeal filed by Asia Bibi, the first Christian person sentenced to death under the recently passed law on blasphemy, and announced that it will make a decision in the forthcoming days or weeks.
  10. The Constitutional Court of Moldova declared that a ban that prevented people with intellectual disabilities from voting is unconstitutional.
  11. The Supreme Court of Canada concluded that the Federal Government does not have an obligation to consult indigenous peoples before introducing to Parliament a bill affecting these communities. Read the decision here.
  12. The Supreme Court of Chile upheld a decision issued by an environmental agency that ordered the closure of the water pumping wells used by Canada’s Kinross Gold Corp.
  13. The Supreme Court of Norway upheld the rights of a doctor who refused to practice an abortion procedure based on moral and conscience-related reasons.
  14. The Constitutional Court of Colombia maintained that municipal consultations cannot impede the implementation of mining or oil projects in the municipality’s territory.

In the News

  1. The Parliament of Finland is considering a constitutional amendment aimed at establishing an exception, grounded on national security reasons, to the right to privacy.
  2. Judge Brett Kavanaugh was sworn in as new Associate Justice of the US Supreme Court after a narrow confirmation vote by the US Senate.
  3. The Tokyo Metropolitan Government passed a law banning discrimination based on gender identity or sexual orientation.
  4. The Supreme Court of Hawaii is set to hear a challenge against an amendment to the state Constitution which seeks to increase taxes on investment properties.
  5. Diana Johnson, Labour MP, is planning to introduce a bill in the House of Commons seeking to decriminalize abortion in Northern Ireland.
  6. The Kenyan Parliament’s Budget and Appropriations Committee will review the financial implications of a constitutional amendment proposal which aims to reestablish, among others, the post of Prime Minister.
  7. The Liberal Democratic Party of Japan (LDP) is planning to introduce to the Diet some proposals to amend the Constitution, while the government of North Korea decried this move.
  8. The President of the Supreme Court of Ireland, Frank Clarke, called for more ‘direct dialogue’ between members of apex national courts across the European Union in order to facilitate the circulation of case-law-related information and to increase the ‘horizontal influence’ of domestic supreme courts.
  9. The implementation of the Indian Supreme Court’s decision that gave women access to Kerala’s Sabarimala Temple has been met with resistance coming from members from a conservative Hindu group. Meanwhile, several political parties have called for dialogue before implementing the ruling.
  10. The referendum that purported to amend the Romanian Constitution to define ‘family’ as the union between a man and a woman failed because it did not reach the minimum turnout threshold.
  11. Right-wing candidate Jair Bolsonaro won the first round of the Brazilian presidential election. A runoff between Bolsonaro and the second most-voted candidate (Fernando Haddad) will take place on October 28, 2018.
  12. In Philippines, the House of Representatives’ Committee on constitutional amendments approved a draft constitution that seeks to create a federal state.
  13. The Parliament of Iran passed a bill to combat terrorist financing amidst concerns about the stability of the nuclear deal still in force with several European and Asian nations.
  14. The President of Bangladesh, Abdul Hamid, signed the controversial Digital Security Act which has been criticized for its potential restriction of rights such as freedom of speech and press.
  15. The Government of Malaysia plans to introduce a proposal to amend the Constitution to increase judges’ retirement age from 66 to 70.
  16. The Government of Macedonia asked Parliament to vote on the constitutional amendment bill that seeks to change the name of the country to ‘Republic of North Macedonia’, after the referendum held on September 30 failed to get the minimum turnout and in order to be admitted as a NATO member.
  17. Mohamed Lamine Bangoura was appointed as new president of the Constitutional Court of Guinea.
  18. In the Netherlands, the Hague Court of Appeal held that the government must do more to reduce greenhouse emissions. Full English text of the judgement can be found here.
  19. Armenia has submitted a new Electoral Code proposal to the Venice Commission to know its views on the new Code.
  20. The Government of South Sudan is opposed to the creation of a war crimes court entitled to prosecute and punish war crimes committed during the five-year-long civil war.
  21. In Cameroon, the opposition presidential candidate, Maurice Kamto, declared himself winner of the recent presidential election.
  22. Andrzej Duda, President of Poland, appointed 27 new judges despite a judicial ruling that suspended any judicial nomination pending an opinion of the European Court of Justice.
  23. The former vice president of Guatemala, Roxana Baldetti, was sentenced to prison for committing corruption-related crimes.
  24. The Parliament of Tunisia passed an antidiscrimination law that prohibits and punishes racial discrimination.
  25. The leader of Peru’s political opposition, Keiko Fujimori, was detained over corruption allegations.
  26. The Chairman of the Constitutional Court of Russia, Valery Zorkin, argued for “drastic reforms” to the Russian Constitution. Namely, the Chairman advocated for more checks on power as well as for the protection of traditional Russian values against globalization.
  27. The Washington state Supreme Court held that the state’s death penalty laws are unconstitutional.
  28. The Government of Malaysia plans to abolish the death penalty and declared that it will halt all the pending executions.
  29. The Supreme Court of Philippines Justice Antonio Carpio warned that the Philippines’ unilateral withdrawal from the ICC jurisdiction could weaken his country’s position with respect to China.
  30. In the wake of the recent ICJ ruling, the President of Bolivia, Evo Morales, will send a letter to his Chilean counterpart to explore the possibility of establishing a binational dialogue to negotiate a Bolivian access to the Pacific Ocean.
  31. In Sri Lanka, the Parliament approved the nomination of non-members of Parliament to the Constitutional Council.

New Scholarship

  1. Kriszta Kovács & Kim Lane Scheppele, The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union, Communist and Post-Communist Studies (2018) (tracing what has happened to the judiciaries in Hungary and Poland, showing how courts have been brought under the control of political forces, and examining the role and attempts of the European Union to stop this crisis)
  2. Julian Rivers, The reception of Robert Alexy’s work in Anglo-American jurisprudence, Journal Jurisprudence. An International Journal of Legal and Political Thought (2018) (tracing the history and extent of Robert Alexy’s work’s reception on Anglo-American jurisprudence)
  3. Salvatore Bonfiglio, Intercultural Constitutionalism. From Human Rights Colonialism to a New Constitutional Theory of Fundamental Rights (2018) (arguing that the effective protection of fundamental rights in a contemporary, multicultural society requires an ethics of reciprocity and a pursuit of dialogue between different cultures of human rights, and advancing the notion of ‘intercultural constitutionalism’ as a concept able to meet this requirement)
  4. Anne Peters, Between military deployment and democracy: use of force under the German constitution, Journal on the Use of Force and International Law (2018) (analyzing how the German Constitution has tried to solve the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight)
  5. Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (2018) (providing a qualitative and quantitative examination of the use and non use by the UK Supreme Court of judicial decisions delivered by foreign national courts on human rights issues, and contending that the role of foreign precedents goes beyond what the expression ‘persuasive authority’ may imply)
  6. Mattias Kumm, Global constitutionalism and the rule of law, in Anthony F. Lang & Antje Wiener (eds.), Handbook on Global Constitutionalism (2018) (laying out the meaning of the idea of the Rule of Law in the constitutionalist tradition, and examining the challenges to its global consolidation)
  7. Nick W. Barber, The Principles of Constitutionalism (2018) (exploring how the principles of constitutionalism – sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society– structure and influence successful states)
  8. Jan Petrov, Unpacking the partnership: typology of constitutional courts’ roles in implementation of the European Court of Human Rights’ case law, European Constitutional Law Review (2018) (offering a typology of the roles played by constitutional courts in mechanisms of implementation of the European Court of Human Rights’ case law, and examining the conditions under which constitutional courts have the capacity to perform the roles listed in the typology and secure compliance with the European Court’s judgments)
  9. Santiago Virgüez, Congresspeople in the Courtroom: Analysis of the Use of Constitutional Complaints by Members of Congress in Colombia 1992-2015, Colombia Internacional, (2018) (explaining the reasons why congresspeople belonging to the majoritarian coalition challenge, before the Colombian Constitutional Court, the constitutionality of statutes enacted during their tenure)
  10. Giacomo Delledonne & Giuseppe Martinico (eds.), The Canadian Contribution to a Comparative Law of Secession. Legacies of the Quebec Secession Reference (2019 forthcoming) (reflecting on the landmark 1998 opinion of the Canadian Supreme Court concerning the secession of Quebec, and discussing its global influence)

Special Announcements

  1. The University of Oslo is pleased to announce the launch of a new book by Anine Kierulf on “Judicial Review in Norway – A Bicentennial Debate” on November 16, 2018. The program will feature remarks from Dag Michalsen, Dean of the Faculty of Law, and Tore Schei, former Supreme Court Justice.
  2. The Democratic Decay Resource (DEM-DEC) released the third monthly update of its bibliography on democratic decay (October 2018), containing new research worldwide from September 2018; key items from earlier in 2018 and late 2017; a significant list of items suggested by DEM-DEC users; and forthcoming research. A post introducing the Update was published on Verfassungsblog on 7 October.

Calls for Papers and Announcements

  1. iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen, invites applications for five fully-funded three-year PhD scholarships. The deadline for submissions is December 14, 2018.
  2. The Department of Political Science of LUISS Guido Carli calls for applicants who are interested in a two-year post-doctoral fellowship in Public Law on a project dealing with constitutional amendments -“Procedures for constitutional amendments: features, outcomes and consequences”. Applications must be submitted on line by November 5, 2018.
  3. Melbourne Law School welcomes applications for a PhD scholarship. Applicants should be qualified to work on any aspect of Indian equality or anti-discrimination law. Applications should be sent by November 2, 2018.
  4. European University Institute (EUI) calls for proposals for its forthcoming workshop on ‘Democratic Backsliding and Public Administration’, to be held from January 31 to February 1, 2019. Interested scholars should submit their proposals by October 19, 2018.
  5. The Central and Eastern European Regional Chapter of ICON-S welcomes submissions for its international Conference on ‘Traditional Concepts: New Perspectives, New Challenges’, which will take place on March 29, 2019 in Prague. Interested scholars should send their abstract proposals no later than November 15, 2018.
  6. The International Association of Constitutional Law (IACL) Research Group on “Constitutional Responses to Terrorism” calls for papers for its upcoming Annual Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law”, to be held on June 13-14, 2019, at Bocconi University. Interested scholars are invited to submit an abstract along with their CV by December 15, 2018.
  7. The National University of Singapore invites paper proposals for its 16th ASLI Conference about the ‘Rule of Law and the Role of Law in Asia’. This Conference will be held from 11 to 12 June 2019 at the Faculty of Law. Abstracts should be sent by December 3, 2018.
  8. The Max Weber Programme at European University Institute (EUI) convenes a workshop on ‘Global Justice and Populism’, and invites submissions from interested scholars. Abstracts must be sent on or before January 31, 2019.
  9. The City Law School at the City, University of London, convenes a workshop on ‘Justice, Injustice and Brexit’, which will take place on October 19, 2018. A programme for the event can be found here.
  10. The Democratic Decay Resource (DEM-DEC) will be formally launched on October 22, 2018 with a panel discussion and reception at the University of Melbourne. The panel discussion –titled ‘Is Democracy Decaying Worldwide? And What Can We Do About It?’– will provide an overview of democratic decay across the globe, with experts providing detail on four selected states. The full programme and details are on DEM-DEC.
  11. The British Institute of International and Comparative Law in association with Cambridge University Press convenes a workshop on academic publishing aimed at those starting out in an academic career. This event will take on November 14, 2018 at the British Institute of International and Comparative Law (London).

Elsewhere Online

  1. Samuel Moyn, Resisting the Juristocracy, Boston Review
  2. Alexandra Phelan & Raul Sanchez Urribarri, The Venezuelan crisis matters and there’s much we can do, ABC News
  3. Pauline Weller, “For the Court, it could be…”: Electing Constitutional Judges in the US and Germany, Verfassungsblog
  4. Jack Balkin, Constitutional Rot Reaches the Supreme Court, Balkinization
  5. Eugénie Mérieau, The Sixtieth Anniversary of the French Constitution: Toward the Death of the Fifth Republic? Verfassungsblog
  6. Yen-Tu Su, Taiwan is revolutionizing democracy, The Washington Post
  7. Rahul Bhatia, The Indian Government’s Astonishing Hunger for Citizen Data, The New York Times
  8. Agata Gostyńska-Jakubowska, New Approaches to Upholding Democratic Values in Poland, Carnegie Europe
  9. Tomasz Tadeusz Koncewicz, “Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect. The Polish Constitutional Court Then, Now and … Tomorrow, Verfassungsblog
  10. Başak Çali, The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey, EJIL: Talk!
  11. Alan Whysall, Challenges to good government in Northern Ireland: charting a future course, The Constitution Unit
  12. Meg Russell, Alan Renwick & Jess Sargeant, How and when might a second referendum on Brexit come about? The Constitution Unit
  13. Tom Gerald Daly, Searching for Democracy 2.0 without Losing Democracy 1.0, Pursuit
  14. Simson Caird, Taking Back Control: Brexit, Parliament and the Rule of Law, U.K. Const. L. Blog
  15. Charlotte Burns, UK & Devolved Governments Need to Cooperate on Environment After Brexit, Centre on Constitutional Change
  16. Marco Antonio Simonelli, Judicial Appointments in the Age of Trump – Are There Remedies for Polarization? IACL-AIDC Blog
  17. Julian O’Donnell, Are Victoria’s Safe-Access Zones Safe from the Constitution? AUSPUB Law
  18. Leighann Spencer, Should the ECtHR Consider Turkey’s Criminal Peace Judgeships a Viable Domestic Avenue? Verfassungsblog
  19. Adam Feldman, Empirical SCOTUS: What to expect from Kavanaugh’s first term, SCOTUSblog
  20. John Tasioulas, Are human rights anything more than legal conventions? Aeon
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Published on October 15, 2018
Author:          Filed under: Developments
 

Fake News, Backlash and the Rise of the German Populist Right – An Update on German Developments

–Michaela Hailbronner, Postdoctoral Fellow, University of Münster, Germany

In the last few years, foreign observers have increasingly looked to Germany and Angela Merkel as potential new leaders of the free world. Rich, democratic and equipped with a strong belief in the Rechtsstaat, Germany has seemed a bastion of liberal democracy at a time when others are increasingly in crisis.

The 2017 federal elections cast some shadows on this sunny picture. A new populist right-wing party, Alternative for Deutschland (AfD) won a substantial 13% of the vote. This ensured not only its representation in the federal parliament (clearing the five percent threshold for obtaining seats), but also made it the third strongest party in that body.

A year after the AfD’s entry into Parliament, how do things stand? Does the picture of Germany as a bastion above the crisis still hold?

I’m not here offering a comprehensive response. Instead, this is an update. I describe developments for those not closely observing the German case and attempt to connect the German to the broader global stories debated here and elsewhere.

First, what has happened since the 2017 federal elections?

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Published on October 14, 2018
Author:          Filed under: Analysis
 

Presidentialism and the Crisis of Governance in Brazil

[Editor’s Note: This is the fourth entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Luiz Guilherme Arcaro ConciPontifical University of Sao Paulo

Brazil was the only American country that, once independent (1822), established a national monarchy that reigned for almost eighty years[1]. From the late 1840’s until the proclamation of the Republic (1889), there was also a parliamentary system in a unitarian country. Abruptly, with the proclamation of the republic in 1889, our leaders decided to replace the system of government to presidentialism and the unitary form of state by the federal one. All these changes in only one political transition.

The presidential system, then wrapped in high expectations, became more of the same. Too much personalism, little institutional resistance to the authoritarian impulses of the rulers, fragility of the institutions to control the presidential power (and the governors, at the state level). Alongside this reality, this first phase of the Brazilian Republic (1889-1930) was marked by a standardized set of electoral frauds[2] throughout the territory that only reinforced the same regional oligarchies in power, with little porosity to substitution and popular participation, in spite of the increase of the contingent of voters occurred with the end of the census vote existing during the Empire (1822-1889) and abolished with the Constitution of 1891.

In the course of the 20th century, there were long periods of deepening authoritarianism (1937-1945 / 1964-1985), followed by other short terms of re-democratization (1946-1964 / 1985 onwards), indicating a dynamic pendulum that made it difficult to consolidate a true democratic environment settled by constant free electoral processes ruled by the law and not by the expectation of the powerful groups fighting for the maintenance of power.

With our last Constituent Assembly (1987-1988) the expansive impetus of presidential personalism was maintained and, paradoxically, increased. Some centralizing features established by the military dictatorship[3] were maintained in the constituent debates for the ”new” presidentialism. The President of the Republic, with the new Constitution, gained more power, as we will see, even for the role of defining the political agenda of the National Congress.[4]

Read the rest of this entry…

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Published on October 14, 2018
Author:          Filed under: Analysis
 

Brazilian Federalism and Asymmetries on the 30th Anniversary of the 1988 Constitution

[Editor’s Note: This is the third entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Marcelo Labanca Correa de Araujo, Catholic University of Pernambuco

The historical formation of the Brazilian State has much to do with processes of centralization and political-territorial decentralization. Initially, as a colony of Portugal during the sixteenth to nineteenth centuries, Brazilian territory was divided into hereditary captaincies that were nothing more than a territorial division of power administration. Even in the colonial period, the tension between the rules of the Portuguese crown and the clamor for more local autonomy led to the emergence of revolutionary movements considered by many as “Republicans” but which, in fact, also had federalist aims. For example, the Pernambuco Revolution of 1817, which for a short period of almost three months expelled the Portuguese from a part of the Brazilian territory, formed a republican government. Based on a fundamental organic law, it established the separation of powers and provided for rights and guarantees such as freedom of the press and the irremovability of judges. The revolution of 1817 had a flag with three stars representing the States of Pernambuco, Paraiba and Rio Grande do Norte, as a kind of recognition of the idea of union in diversity.

Even when Brazil became independent of Portugal, inaugurating the monarchy represented by Emperors Pedro I and Pedro II, the unitary state that existed (centralized, of course) also coexisted with the existence of subnational entities that grouped power in populations. The first Brazilian constitution (which dates back to 1824) set out provinces as an element of the territorial distribution of political administration (although lacking in autonomy). These territorial subdivisions suggest that gradually a sense of belonging to the people who inhabited the provinces of each subnational entity had been forming. People from the provinces nowadays called Pernambuco, Rio de Janeiro, São Paulo and other subnational entities recognized themselves as members of the same group and also as different from the inhabitants of other provinces, creating the human element that in the future would give support for the formation of states. Thus, if it is true that federalism is not the same as a federal state (which would be its “constitutionalization”), it is also true that Brazilian federalism did not expect to be formalized by a constitutional text. In fact, there are many examples of processes that were directed towards a federalist path even when the unitary monarchical state was still in force.[1]

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Published on October 13, 2018
Author:          Filed under: Analysis
 

ICON-S Council Elections—Call for Nominations

–Lorenzo Casini and Rosalind Dixon, Co-Presidents, ICON-S

To the ICON-S Community:

The state of the Society is strong, and a major reason why is our active and engaged membership.

We are pleased to announce plans to continue renewing the Society’s Council with an infusion of new members directly elected by our membership. The 2018 ICON-S Council elections will follow our inaugural elections held last year in 2017, when the Society’s membership elected eight (8) new Council members.

This year we will invite the membership to elect six (6) new Council members, each to serve a three-year non-renewable term.

The 2018 ICON-S Council elections will proceed in two phases: first, nomination; and second, election.

We are writing now to invite you to nominate suitable candidates for Council membership. Membership on the Council is a position of high distinction, entailing responsibility for the intellectual guidance of the Society, advising the Executive Committee, and representing the interests of the membership.

More information about the Society’s governing bodies, including the existing membership of the Council can be viewed here: https://icon-society.org/governance.

Nominations should be submitted via email to ICON-S at the following email address no later than October 25, 2018, 10pm GMT: icons@icon-society.org.

Nominations should include the nominee’s name, academic title, institutional affiliation, history of participation in and involvement with ICON-S, and a weblink to a CV or profile. Self-nominations are welcome.

Nominations will be reviewed by the Executive Committee by November 5, 2018, and the names selected will then be submitted to the entire membership of the Society for electronic voting.

Elections will be held online from December 1, 2018 to December 11, 2018, following the same electoral procedure used in 2017:

  1. Voting will open to the entire ICON-S membership on December 1, 2018 at 12pm GMT and will close on December 11, 2018 at 10pm GMT.
  2. Each member of the Society may vote only once for up to six (6) of the candidates on the list of candidates.
  3. To promote regional diversity consistent with the Society’s mission to be open to all, each member may vote for up to but no more than two (2) candidates from institutions based in the same country.
  4. To promote balanced gender composition consistent with the Society’s recognition of the importance of diversity—a principle approved by the Executive Committee and Council at the 2016 annual meeting—each member may vote for up to but no more than three (3) candidates of each gender.
  5. Any vote inconsistent with any of these conditions will be void.
  6. Following the voting period, the list of successful candidates will be approved by the Society’s Executive Committee, and the results will be announced shortly thereafter.

We thank you for your enthusiastic support of the Society, and we look forward to continuing to build the Society consistent with our mission.

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Published on October 12, 2018
Author:          Filed under: Developments
 

The Challenge of Interpretation and the 1988 Brazilian Constitution

[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Gustavo Ferreira Santos and João Paulo Allain TeixeiraCatholic University of Pernambuco, Federal University of Pernambuco, and National Council for Scientific and Technological Development  (CNPq)

Brazil enacted a new constitution in 1988, looking for inspiration in post-war Europe, in particular the experiences of Portugal and Spain. These are both young democracies which once endured many years of authoritarian rule. However, there was still no consistent debate among lawyers and scholars as to how to bring the new Constitution into full effect. In fact, constitutional law was still marked by the consequences of an extended dictatorial past – that lasted more than twenty years-, in which the constitution itself held a very low legal status.

This is evident from a brief perusal of the first books dedicated to commenting on the new Constitution. Authors such as Ives Gandra da Silva Martins, Celso Ribeiro Bastos, José Cretella Jr., and Manoel Gonçalves Ferreira Filho interpreted the new text under the influence of previous experience. This ‘rearview mirror’ kind of interpretation can also be seen in the first rulings of the Brazilian Supreme Court (STF).

A gradual shift, however, was underway in discussion of the Constitution. The influence of European constitutional thought in the second post-war period had grown. Some constitutional scholars, such as Paulo Bonavides and José Afonso da Silva, already reflected this trend in their academic works. Younger constitutional lawyers accelerated the process. Suddenly, the debate was flooded by a set of institutes and concepts built in European jurisdictions. Friedrich Muller, Peter Häberle, Konrad Hesse and Robert Alexy (Germany), Gustavo Zagrebelsky and Luigi Ferrajoli (Italy), Pablo Lucas Verdu, Antonio Enrique Pérez Luño and Gregorio Peces-Barba (Spain) and José Joaquim Gomes Canotilho and Jorge Miranda (Portugal), for example, were very common bibliographic references in this debate. Some English-speaking authors, such as Ronald Dworkin, were also cited.

Under these circumstances, therefore, the debate over the Brazilian constitution was strongly influenced by countries with well-established constitutions, such as those in Europe and the United States. Many new methods of interpretation and judicial decision-making techniques were developed and applied. Constitutional law was characterized by topics such as the weighting of principles, proportionality test, the enforcement of fundamental rights in private relations and interpretation of statutes “according to the Constitution.”  Such topics were usually associated with “neo-constitutionalism”[1], considered to be an innovative and anti-formalistic approach to Constitutional Law.

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Published on October 11, 2018
Author:          Filed under: Analysis