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

Courts and Public Opinion: The Colombian Peace Process and the Substitution of the Constitution Doctrine

Jorge González-Jácome, Universidad de los Andes Bogotá

After many failed attempts to achieve peace since the 1980s, the Colombian government and the rebel group, FARC, sat down in Havana in 2012 to start a new round of peace talks. Four years later, the two parts have reached a 297-page agreement to finish a five-decade-old armed conflict. Roughly, the peace deal includes issues dealing with rural reform, political changes that will help the FARC in its transformation into a political party, an array of mechanisms of transitional justice, a set of commitments regarding the dismantling of the illegal drug industry that partially funded the FARC’s struggle, and a set of special procedures and reforms that will be necessary for the implementation of the agreements.  Within this process the people will be heard: the pact must be approved or rejected by the people through a plebiscite. On October 2 Colombians will vote “Yes” or “No” on this agreement.

The plebiscite is a direct democracy mechanism established in article 104 of the Constitution through which the President and his ministers, after approval of the Senate, can ask the people their views on political issues that are relevant for the whole nation. According to the Constitution, the decision of the people will be “compulsory.” The Senate enacted a statute calling on the people to vote for the plebiscite and the Constitutional Court upheld almost all of the articles of the Statute.[1] However, some of the articles of the Statute were declared unconstitutional. For example, article 3, which established that “Congress, the President and other branches, institutions and state offices must enact the appropriate measures for the purpose of fulfilling the people’s verdict expressed in the polls,” was struck down. The Court held that the plebiscite was an expression of popular support for a policy pursued by the President. The effect of the plebiscite, according to the Court, would be to give legitimacy to governmental decisions; it does not amend the laws or the Constitution. Accordingly, Congress, judges and other governmental institutions cannot be bound by the plebiscite and therefore the peace deal is not a legally binding norm. If Colombians vote “yes” it will be a sovereign expression of the people that binds the President in fulfilling the terms of the decision.

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Published on September 28, 2016
Author:          Filed under: Developments
 

What’s New in Public Law

–Rohan Alva, Advocate, New Delhi

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

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

Developments in Constitutional Courts

  1. The Indian Supreme Court declined to hear a public interest litigation petition that asked for the creation of an independent institution to oversee judicial appointments.
  2. Teimuraz Tugushi was appointed as a judge of the Constitutional Court of Georgia.
  3. The Romanian Constitutional Court deferred ruling on a petition that invited the Court to rule on the validity of a same-sex marriage.
  4. In its forthcoming fall session, the Canadian Supreme Court will decide a class action suit against Facebook for violating privacy rights.
  5. The U.S. Court of Appeals for the Fourth Circuit held that county commissioners in North Carolina could commence public meetings with a prayer.

In the News

  1. Ukraine’s Parliament voted on legislation that sets up an independent energy market regulator.
  2. In Jordan, nearly 1.5 million voted to elect members to the parliament, with the elections registering an increase of nearly 200,000 voters.
  3. Myanmar’s House of Representatives approved of a bill requiring the Union to ensure that the privacy and property rights of citizens are protected.
  4. U.S. President Barack Obama vetoed a bill passed by Congress that would have empowered “9/11 victims and their families” to take legal action against Saudi Arabia.
  5. A commission under the Council of Europe released a preliminary report finding that proposed changes to the Azerbaijan Constitution are not justified and would hinder the balance of government power.

New Scholarship

  1. Richard Albert, Amendment and Revision in the Unmaking of Constitutions, in Edward Elgar Handbook on Comparative Constitution-Making (David Landau & Hanna Lerner eds., forthcoming)
  2. Elisa Arcioni, The Core of the Australian Constitutional People-‘The People’ as ‘The Electors’, 39 University of New South Wales Law Journal (2016) (evaluating the nature of the relationship that the constitution creates between the people and the elected branch, and how such a relationship translates into restrictions on the power of Parliament to legislate)
  3. Elisa Arcioni, Tracing the ethno-cultural or racial identity of the Australian constitutional people, 15 Oxford University Commonwealth Law Journal (2015) (proposing that Australian constitutionalism did not incorporate a particular racial identity and that any “negative racial component” must be removed from Australian constitutionalism)
  4. Cora Chan, A Preliminary Framework for Measuring Deference in Rights Reasoning, International Journal of Constitutional Law (forthcoming) (propounding a novel framework to judge the degree of deference a court accords to the adjudication of issues on human rights and evaluating the utility of adopting such a framework)
  5. Debtoru Chatterjee, Presidential Discretion (2016) (critically examining, both historically and comparatively, the discretionary powers vested in the President of India and how past presidents have utilised their discretionary powers to overcome the challenges of their times)
  6. Aleksandra Gliszczyńska-Grabias and Wojciech Sadurski, The Law of Ritual Slaughter and the Principle of Religious Equality4 Journal of Law, Religion and State (2016) (evaluating, from a religious equality perspective, the decision of the Constitutional Court of Poland invalidating a law prohibiting animal slaughter)
  7. David Rudenstine, The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (2016) (positing that over the years the U.S. Supreme Court has accorded greater deference to the executive branch in matters of national security, and examining the deleterious impact such judicial deference has had on rights)

Call for Papers

  1. Papers are invited for a conference on “Imposed Constitutions: Aspects of imposed constitutionalism” to be held at the University of Nicosia on May 5-6, 2017. Abstracts of papers must be submitted by December 20, 2016.
  2. A call for papers has been issued by the Jean Beer Blumenfeld Center for Ethics for a conference on “Overcriminalization and Indigent Legal Care” to be held at Georgia State University on April 6-7, 2017. Abstracts of papers should be sent in by December 15, 2016.
  3. Papers are called for by the Hebrew University of Jerusalem for a conference on “Law as Religion, Religion as Law” to be held on June 5-7, 2017. Abstracts of papers are due on October 26, 2016.
  4. Papers are invited by the Center on Applied Feminism, University of Baltimore School of Law for the “Tenth Anniversary of the Feminist Legal Theory Conference” to be held on March 30-31, 2017. Proposals of papers should be sent in by October 28, 2016.
  5. Bar-Ilan Faculty of Law is hosting the “4th Annual Conference of the International Network on Transnational Legal and Political Theory” on May 7-8, 2017. Participants are invited to apply by October 31, 2016.
  6. The German Federal Ministry of Economic Cooperation and Development is organizing a conference on “Law for Development: Strengthening Social Protection Systems in Africa” on November 10-11, 2016 in Berlin.

Elsewhere Online

  1. Richard Albert, Is it time to scrap the Constitution and write a new one? Boston Globe
  2. Maja Daruwala, Ten years and waiting, The Indian Express
  3. Noah Feldman, When a county board’s prayer goes too far, Bloomberg View
  4. Leah Jessen, What’s at stake in the next Supreme Court term, The Daily Signal
  5. Maya Manian, Protecting Abortion Rights after Whole Woman’s Health, Jurist
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Published on September 26, 2016
Author:          Filed under: Reviews
 

Book Review: Alyssa King on “Public Law Adjudication in Common Law Systems: Process and Substance”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alyssa King reviews Public Law Adjudication in Common Law Systems: Process and Substance (John Bell, Mark Elliott, Jason NE Varuhas, Philip Murray eds., Hart 2016)]

Alyssa King, PhD Candidate, Yale University, Resident Fellow at the Yale Law School Information Society Project

Public Law Adjudication in Common Law Systems: Process and Substance features a Kadinsky painting on its cover, a clear sign that the publisher expects the material to be difficult or arcane. Such covers grace advanced calculus texts and obscure works of literary theory. Yet, as much of this collection proves, the subject of public law adjudication need not be so intimidating.

The book, based on a conference on “Process and Substance in Public Law” held in September 2014 at the University of Cambridge, includes essays from scholars across several common law jurisdictions, including England and Wales, Australia, Canada, and the United States. They take on several major themes relating to the values underlying administrative law, whether and how distinctions between process and substance should be made in a given context, and the relationship between judges, administrators, and elected officials.

One question that emerges from the choice of themes as well as the choice of jurisdictions is how many of the chapters take on issues that illuminate features of public law specific to the common law world. Many chapters grapple with themes central to public law in consolidated democracies. The common law does not necessarily have a distinctive approach to such issues.

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Published on September 24, 2016
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Virtual Bookshelf: Understanding Constitutional Change in Canada–A Review of “Constitutional Amendment in Canada,” Edited by Emmett Macfarlane

Richard Albert, Boston College Law School

In his influential though dated study of formal amendment difficulty, Donald Lutz examines the amending procedures for 32 countries and concludes that the United States Constitution is the most difficult to amend.[1]

Notwithstanding the all-important questions raised by Tom Ginsburg and James Melton–whether and how much the amending rule matters to measuring amendment difficulty[2]–Lutz’s conclusions are consistent with what we generally believe to be true: constitutional amendment is difficult in large, federal and heterogeneous states.[3]

Buried in a footnote deep within Lutz’s book is a reference to Canada: Lutz explains that he did not include the Canadian Constitution in his study sample because he cannot reliably determine what has constitutional status in Canada, and consequently he cannot know what counts as a constitutional amendment.[4]

Lutz can be forgiven for omitting Canada from his study of formal amendment difficulty. Constitutional amendment in Canada is indeed hard to understand, for two reasons in particular.

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Published on September 21, 2016
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Call for Papers–Symposium on The Constitution of Canada: History, Evolution, Influence and Reform–Pisa, Italy–24 May 2017

Symposium on
The Constitution of Canada: History, Evolution, Influence and Reform

On the Occasion of the 150th Anniversary of Confederation
In memory of Alessandro Pizzorusso

Scuola Sant’Anna
Piazza Martiri della Libertà 33
Pisa, Italy

Convened by

Giuseppe Martinico
Richard Albert
Antonia Baraggia
Cristina Fasone

24 May 2017
Pisa, Italy

This Symposium will convene a group of scholars to reflect on the history and evolution of the Constitution of Canada, on its written and unwritten dimensions, on its influence abroad, and on prospects for its reform.

Submissions are invited from scholars of all levels—from senior scholars to doctoral students—on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

  1. The History and Evolution of the Constitution of Canada
  2. The Influence Abroad of the Constitution of Canada
  3. Canada’s “Invisible” Constitution
  4. Reforming Canada’s Constitution: Perspectives from Abroad

The Symposium will be highlighted by a keynote address by Susanna Mancini, Full Professor of Comparative Public Law at the University of Bologna, and will feature Paolo Carrozza (Scuola Sant’Anna, Pisa), Giacomo Delledonne (Université Saint-Louis, Bruxelles), Anna Gamper (University of Innsbruck), and Patricia Popelier (University of Antwerp).

How to Participate

Interested scholars are asked to submit an abstract no longer than 500 words by 15 December 2016 to stalsworkshop2016@gmail.com. A Symposium Selection Committee will choose abstracts and notify all scholars no later than 20 January 2017. Full drafts of papers will be due by email to stalsworkshop2016@gmail.com no later than 20 April 2016. Papers should be no longer than 10,000 words (footnotes included).

The Convenors intend to seek publication of the papers presented at the conference either an edited volume or a special issue of a law journal, subject to successful blind peer-review. Papers submitted but not accepted may be considered for publication in the STALS Research Paper Series: www.stals.sssup.it.

Costs

There is no cost to participate in the Symposium. Participants are responsible for securing their own funding for travel, lodging and other incidental expenses. Scuola Sant’Anna will sponsor lunch and dinner on the day of the Symposium, as well as a welcome reception for participants on the evening prior to the Symposium.

Questions

Please direct inquiries in connection with this Symposium to Giuseppe Martinico by email at martinico@sssup.it.

Symposium Selection Committee

Richard Albert (Boston College Law School)
Antonia Baraggia (University of Milan)
Cristina Fasone (Luiss Guido Carli University, Rome)
Giuseppe Martinico (Scuola Sant’Anna, Pisa and Centre for Studies on Federalism, Turin) (Chair)

About the Scuola Sant’Anna, Pisa and the STALS (Sant’Anna Legal Studies) Project

Scuola Sant’Anna (http://www.santannapisa.it/en) is a public university institute provided with special autonomy. The main aim of the Scuola Sant’Anna is to experiment with innovative paths in education and research, so as to meet the modernization and innovation expectations of contemporary society. In line with this goal the Scuola Sant’Anna responds swiftly to each and every societal challenge by adopting a multidisciplinary and forward-looking approach.

Comparative and European Union law are also relevant matters in the research activities of Scuola Sant’Anna, especially in the framework of STALS (Sant’Anna Legal Studies: http://www.stals.sssup.it), a project made possible thanks to the financial support offered by Scuola Sant’Anna, issued within the framework of the School’s internationalization policy, where both young and experienced scholars can share a space and propose papers that are classified by topics (European politics and policies; subnational constitutional law; constitutional developments; judicial dialogue and transnational law; European and international economic law; global legal pluralism), in order to foster discussion and research at the supranational level, promoting cooperation with other researchers abroad and organizing seminars and conferences with the participation of judges and members of EU institutions and international organizations.

Sponsors

We thank the following sponsors for supporting this Symposium:

  1. Scuola Universitaria Superiore Sant’Anna
  2. The Sant’Anna Legal Studies Project
  3. The Embassy of Canada
  4. The International Association of Constitutional Law
  5. Associazione di Diritto pubblico comparato ed europeo
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Published on September 20, 2016
Author:          Filed under: Developments
 

What’s New in Public Law

Patrick Yingling, Reed Smith LLP

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 German Constitutional Court held that extraditions based on a European arrest warrant are not impermissible merely because the right not to incriminate oneself is not guaranteed to the same extent in the requesting state as under German law.
  2. The Zambia Supreme Court denied an application by the country’s main opposition party to stop the inauguration of President Edgar Lungu.
  3. Israel’s High Court of Justice ruled that the implementation of a law allowing the force-feeding of Palestinian prisoners on hunger strikes is constitutional.
  4. Ukraine’s Constitutional Court declared unconstitutional the demand that permission be received from the local authorities for holding public religious events.
  5. Bosnia’s Constitutional Court upheld a ban on a “discriminatory” national holiday in the country’s autonomous Serb Republic, setting the regional government on a collision course with the deeply divided country’s central authorities in Sarajevo.

In the News

  1. Uganda’s parliament rejected a constitutional amendment proposal to extend age limits for electoral commissioners and judges.
  2. Lawmakers in Turkmenistan adopted amendments to the country’s constitution that pave the way for a life-long presidency for the incumbent leader.
  3. Cyprus’s parliament approved an amendment to strike out a provision in the constitution that enables the imposition of the death penalty.
  4. Former PM Sir Geoffrey Palmer published a draft of a proposed codified constitution for New Zealand.
  5. As Russia holds national elections for 450 seats in the State Duma, the lower house of parliament, claims of election fraud and other violations surfaced on Sunday. 
  6. Thailand’s military government announced that it will prosecute cases concerning national security and “royal insult” in civilian courts. 
  7. Australian Prime Minister Malcolm Turnbull will introduce legislation to hold a national vote on same-sex marriage after the plebiscite was approved by the Cabinet.
  8. Canada will press the United States to alter a border policy that has barred Canadians who admit to having used marijuana from traveling to the United States.

New Scholarship

  1. Constitucionalismo progresista: retos y perspectivas. Un homenaje a Mark Tushnet (Roberto Gargarella and Roberto Niembro Ortego eds.) (2016) (a compilation of papers discussing the challenges and prospects of progressive constitutionalism) (in Spanish)
  2. Donald Markwell, Constitutional conventions and the headship of state: Australian experience (2016) (discussing conventions and other practices relating to the Crown in Australia’s Westminster-style system of government)
  3. Rosalind Dixon, Constitutional Carve-outs, Oxford Journal of Legal Studies (2016) (examining constitutional carve-outs with reference to detailed constitutional case studies from India, South Africa and Australia)
  4. Mario A. Cajas Sarria, The Constitutional Justice of General Gustavo Rojas Pinilla: Between the Constitutional Tribunal and the Constitutional Affairs Chamber. Colombia, 1953-1957, Historia Constitucional (2016) (examining the reforms and attempts to reform the justice system by General Gustavo Rojas Pinilla, who ruled Colombia between 1953 and 1957) (in Spanish)
  5. Bernardo Giorgio Mattarella, The Ongoing Constitutional and Administrative Reforms in Italy (2016) (examining important reforms under way in Italy: the constitutional reform, approved by Parliament in January 2016; the electoral law for the Chamber of Deputies, approved few months earlier; and the administrative reform, which is being implemented)
  6. Gabrielle J. Appleby and Adam Webster, Executive Power under the Constitution: A Presidential and Parliamentary System Compared, University of Colorado Law Review (2016) (examining the factors that led to the Australian system of government blending features of the federal system of the United States with the parliamentary system of the United Kingdom)
  7. The European Journal of Legal Studies has released a new issue: Volume 9, Issue 1 (2016)
  8. Ralf Michaels, Does Brexit Spell the Death of Transnational Law?, German Law Journal (2016) (suggesting that hopes to return from transnational law to the nation state of the 19th century are futile but that transnational law must take serious the pleas of those who feel left out from it in order to remain fruitful)
  9. Carina Barbosa Gouvêa, UN’s interventions on the constitution-making process in political transition States: the role of the UN in the rescue of the democratic order (2016) (examining the institutional ability of the United Nations to contribute to the generation of a legitimate order in countries passing through redemocratization) (in Portuguese)
  10. Federico Fabbrini, How Brexit Opens a Window of Opportunity for Treaty Reform in the EU (2016) (examining from an EU law perspective some of the most immediate constitutional reforms that the EU and the member states will have to face as a result of Brexit)
  11. Thorvaldur Gylfason, Chain of Legitimacy: Constitution Making in Iceland, CESifo Working Paper Series No. 6018 (2016) (offering an account of the constitution-making process from 2010-2013, including the work of the Constituent Assembly, and describing Parliament’s ongoing attempt to undermine the substance of the constitutional bill accepted by two thirds of the voters in the 2012 referendum)

Calls for Papers and Announcements

  1. The Board of Editors of the Comparative Constitutional Law and Administrative Law Quarterly (CALQ) has issued a call for submissions for its next issue, Volume 3.2. The deadline is November 27, 2016.
  2. The IGLP Asian Regional Workshop, hosted and sponsored by the Thailand Institute of Justice, will be held in Bangkok, Thailand from January 6-11, 2017. Applications are due by September 30, 2016.
  3. The Barak Center for Interdisciplinary Research at the Hebrew University has issued as call for papers for a Multidisciplinary Volume and Conference on “Law as Religion, Religion as Law” to be held on June 5-7, 2017 in Jerusalem. The deadline for abstracts is October 26, 2016.
  4. The law and humanities research center at Panthéon-Assas University invites submissions for its first international conference in Paris, France on June 15-17, 2017. Papers may discuss any dark issues in the law in common law countries. Submissions are due December 15, 2016.
  5. The International Bar Association and the European Law Students Association will host the IBA-ELSA Law Students’ Conference on November 12-13 in London, England. The goal of the conference is to gather law students at all levels of their legal education and learn about international courts and tribunals while providing tips on networking and building a career in the law.
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Published on September 19, 2016
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Crisis and Opportunity: Responding to the Brexit Vote (I·CON 14, Issue 3: Editorial)

The vote by a majority of the British people on June 23 to leave the European Union has precipitated a series of gradually unfolding consequences throughout the United Kingdom, within Europe, and across the world. Comparisons have been drawn to the fall of the Berlin Wall, in terms of the magnitude and geopolitical significance of the event. A flood of commentaries, analyses and predictions has followed from the first hours after the result was announced and continues to the present day.  The full implications remain as yet unclear.

If there is one pervasive feature of the outcome of the vote, both in the immediate aftermath and now with more distance from the event, it is the deep uncertainty that it has created. The reactions of markets, political leaders, communities and individuals have reflected this pervasive uncertainty about what the vote means and what it will ultimately bring about. Markets have fluctuated wildly, leaders have resigned, businesses have withdrawn or frozen investments, large numbers of people have applied for alternative passports, sought new jobs or changed educational plans. Even those celebrating the vote seem to have little idea of what the future may hold. At the time of writing, there is little clarity about the way forward as regards the UK’s negotiation of the terms of exit. Yet even as the immediate and subsequent steps gradually become clearer, profound and longer-term uncertainty remains about what the implications will be for the UK and its component parts, for the European Union and its member states, and for the international order more generally.

It is not the aim of this Editorial to add to the multitude of powerful voices that have lamented the outcome of the vote. Nevertheless I share many of their reflections, in particular as regards its socially divisive effects and the blow it has dealt to the ideal of a united and peaceful continent.  But the aim of this comment is to reflect on what it would take to turn the Brexit crisis into an opportunity to reform, strengthen and democratize the process of European integration and ultimately of transnational cooperation. The very fact that the vote has generated such pervasive uncertainty means that no set of outcomes, positive or negative, can be taken for granted.  Disaster is not inevitable, any more than the outcome of the referendum itself was inevitable. It is certainly possible that the vote will lead to a period of prolonged economic and political hardship for Britain, to the gradual disintegration of the European Union, and to greater international discord and conflict.  But another scenario could see reform and renewal of the European project as the eventual result of the Brexit referendum.  What is likely to make the difference between these alternative scenarios is the individual and collective actions of many people – including, importantly, for the readers of this journal, academic scholars – in the UK, across Europe and elsewhere, who have a stake in the future of the European Union.

While there is uncertainty about the future and the likely consequences of the Brexit vote, there is less uncertainty about the factors that led people to vote for the UK to leave the European Union. While some of those voting to leave – in particular older Britons – may have hoped to achieve elusive goals such as a return to an earlier way of life, or to regain national economic sovereignty, others had more concrete and focused concerns about the way in which the European Union is run and about many of its specific actions and policies.  Strongly held views about the remoteness of EU institutions and European political leadership from the concerns of national populations, and about the weakening of domestic democratic institutions played their part across the political spectrum in the vote to leave. Concerns about the vastly uneven distribution of the gains and losses of economic integration, including those resulting from the freedom of movement guaranteed under EU law, were central to the outcome of the referendum.  Both within Britain but also across many other member states, the handling of the Euro-crisis and in particular the imposition by the EU, in conjunction with the IMF, of punitively austere economic conditions on Greece and other indebted countries, gave rise to a wave of protest from many of those who were previously favorable towards the EU and EU membership.

It may appear both naïve and clichéd to suggest that the aftermath of this destabilizing vote could present a moment of opportunity and renewal for the European Union. But there is unquestionably a sense that the context of political upheaval brought about by the Brexit vote offers an occasion for reform of the EU that could be seized, given sufficient political will and public demand.  Demonstrations of support for the European Union and the process of European integration have typically come from the people of aspiring member states, most recently the Ukraine. The march by thousands of people in London in July in protest against the referendum vote and in support of EU membership was an event unprecedented in the EU’s history.  The prospect of losing EU membership clearly crystallized for many what they considered worthwhile and valuable about European integration, and mobilized them to demonstrate in support of those beliefs.  Since the Brexit debate began in earnest in the UK earlier this year, the public arguments made in defense of the EU and the kind of transnational cooperation it represents were more passionate than any heard in over four decades of EU membership. Continued public mobilization of this kind will be essential if the Brexit vote is to represent an opportunity for reform rather than an irreversible catastrophe.

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Published on September 16, 2016
Author:          Filed under: Editorials
 

I·CON’s Current Issue (Table of Contents)

I·CON

 Volume 14 Issue 3

 Table of Contents

Editorial

Keynote

Ruth Rubio-Marín, Women in Europe and in the world: The state of the Union 2016

Articles

Joshua Braver, Hannah Arendt in Venezuela: The Supreme Court battles Hugo Chávez over the creation of the 1999 Constitution

Robert Leckey, The harms of remedial discretion

Symposium: All Emperors? On the Constituent Power of Unbound Constitutionalism

Antje Wiener and Stefan Oeter, Introduction: Who recognizes the emperor’s clothes anymore?

Markus Patberg, Against democratic intergovernmentalism. The case for a theory of constituent power in thglobal realm

Nele Noesselt, Contested global order(s): Rising powers and the re-legitimation of global constitutionalization

Nico Krisch, Pouvoir constituant and pouvoir irritant in the postnational order

Hauke Brunkhorst, Constituent power and constitutionalization in Europe

Mattias Kumm, Constituent power, cosmopolitan constitutionalism and post-positivist law

I.CON: Debate!

Sandra Fredman, Substantive equality revisited

Catharine A. MacKinnon, Substantive equality revisited: A reply to Sandra Fredman

Sandra Fredman, Substantive equality revisited: A rejoinder to Catharine MacKinnon

Critical Review of Governance

Erin Delaney, Searching for constitutional meaning in institutional design: The debate over judicial appointments in the United Kingdom

Review Essay

Katharina Isabel Schmidt, When limits produced strength: Kevin Butterfield on law and associationalism in the early United States. Review of Kevin Butterfield. The Making of Tocqueville’s America—Law and Association in the Early United States

Book Reviews

Mads Andenas and Eirik Bjorge (eds). A Farewell to Fragmentation: Reassertion and Convergence in International Law (Jed Odermatt)

Chris Jay Hoofnagle, Federal Trade Commission Privacy Law and Policy (Bilyana Petkova)

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Published on September 15, 2016
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What’s New in Public Law

–Sandeep Suresh, LL.M in Comparative Constitutional Law (Central European University, Budapest)

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

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

Developments in Constitutional Courts

  1. The Indian Supreme Court observed that criticizing the government or its policies does not qualify as sedition.
  2. Israel’s Supreme Court upheld a law allowing force feeding of prisoners on hunger strikes.
  3. The Indian Supreme Court will consider the question of whether it is permissible to restrict free speech on the grounds of constitutional compassion and constitutional sensitivity.
  4. The U.S. Supreme Court rejected Michigan’s appeal of an injunction that would not allow the state to ban straight-ticket voting.
  5. The Italian Supreme Court held that masturbating in public is not an illegal act.
  6. The German Constitutional Court ruled that if family members who live in the same household can reasonably be expected to manage the household out of pooled resources, the income and assets of another family member may be taken into account in determining an applicant’s neediness as required when granting benefits intended to secure the recipient’s existential needs.

In the News

  1. President Obama nominated a Muslim lawyer to be a U.S. District Court Judge. If the nomination is confirmed, he will be the first federal judge following Muslim faith.
  2. Justice Jasti Chelameswar, a senior judge of the Indian Supreme Court, refused to participate in the Supreme Court Collegium meetings showing his protest against the lack of transparency in its judicial appointments process.
  3. A group of Costa Rican citizens approached the Supreme Elections Tribunal with a request for a public referendum on formulating a new constitution.
  4. Two women rights groups in Kenya are set to file a petition to challenge the conduct of Parliament and the Attorney General with regards to the two thirds gender principle.
  5. The Indian President gave his assent to the Constitution Amendment Bill on Goods and Services Tax paving way for a uniform system of indirect taxation in the country.
  6. The Aruban legislature voted to give official recognition to same-sex couples, giving them the right to register their unions and receive the benefits granted to other married people.

New Scholarship

  1. Graham Butler and Martin Ratcovich, Operation Sophia in Uncharted Waters: European and International Law Challenges for the EU Naval Mission in the Mediterranean Sea, Nordic Journal of International Law (2016) (analysing the main legal challenges facing the European Union Naval Force, EUNAVFOR Med (‘Operation Sophia’), established in 2015, to disrupt human smuggling and trafficking activities)
  2. Elaine Fahey, The Global Reach of EU Law (forthcoming 2017) (examining the conceptual development of the global reach and effects of EU law and the methodology of EU rule-making processes)
  3. Stephen Gardbaum, What is Judicial Supremacy?, in Comparative Constitutional Theory, Gary Jacobsohn and Miguel Schor (eds.) (forthcoming) (identifying, disaggregating, and assessing the utility of four distinct senses or conceptions of judicial supremacy in domestic and comparative constitutional theory)
  4. Gbohou Gnantin Hilaire Tegnan and Saldi Isra, Rule of Law and Human Rights Challenges in South East Asia: A Case Study of Legal Pluralism in Indonesia (2016) (discussing the practice of legal pluralism and its effects and the rule of law in Indonesia with the help of empirical data and survey results)
  5. Patrick Macklem, The Form and Substance of Aboriginal Rights: Assimilation, Recognition, Reconciliation, in The Oxford Handbook of the Canadian Constitution, N. Des Rosiers, P. Macklem and P. Oliver (eds.) (forthcoming 2017) (arguing that constitutional reconciliation can only commence by comprehending Aboriginal rights and title as protecting Indigenous interests associated with culture, territory, treaties and sovereignty in robust terms—terms, if met, which will have profound structural consequences for the constitutional relationship between Indigenous peoples and Canada)
  6. Zsolt Kortvelyesi, Continuity, Discontinuity and Constitution-Making: A Comparative Account (2016) (presenting a comparative overview of how the formal source of a constitution’s authority is present, or misrepresented, in a constitution-making process and analyzing the Hungarian case, the adoption of the 2011 Fundamental Law in this light)
  7. Rehan Abeyratne, Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective, George Washington International Law Review (forthcoming) (arguing that the Indian Supreme Court’s judgment on October 16, 2015 ruling the National Judicial Appointments Commission (NJAC) to be unconstitutional is flawed in two ways)
  8. Ernest Caldwell, Chinese Constitutionalism: Five-Power Constitution, in Max Planck Encyclopedia of Comparative Constitutional Law, Rainer Grote, Franke Lachenmann and Rüdiger Wolfrum (eds.) (forthcoming) (discussing the contents and tumultuous history of the Chinese Constitution which provides for five branches of government as opposed to the general tradition of tripartite separation of powers between the legislature, executive and the judiciary)

Calls for Papers and Announcements

  1. The Thailand Institute of Justice will be organizing the Institute for Global Law & Policy Asian Regional Workshop in Bangkok from January 6-11, 2017. Interested applicants must submit their application by September 30, 2016.
  2. The American Constitution Society will be hosting the Junior Scholars Public Law Workshop at the AALS Annual Meeting in San Francisco on January 5, 2017. Interested participants must submit their papers, in any field related to public law, by October 15, 2016 to juniorscholarsworkshop@acslaw.org. 
  3. The School of Law at Trinity College, Dublin will hold the 2017 meeting of the Berkeley Comparative Equality and Anti-Discrimination Law Study Group from June 15-16, 2017. Participants must submit their presentation proposals or applications to participate as a discussant/panel chair by November 1, 2016.
  4. The Commonwealth Journal of Constitutional Law & Public Policy is inviting manuscripts for it upcoming issue – Volume 2, Issue 2. The deadline for submission is September 30, 2016.
  5. The Indian Journal of Constitutional Studies is inviting papers for its inaugural issue. Interested authors must submit their manuscripts to editor@ijcons.com by September 15, 2016.

Elsewhere Online

  1. Lawrence Rosenthal, The Court after Scalia: Fourth Amendment jurisprudence at a crossroads, SCOTUSBlog
  2. Pranoto Iskandar, It’s time to flesh out the reform agenda, The Jakarta Post
  3. Chithra P. George, The Government Must Rethink the Surrogacy Bill, The Wire
  4. Sadhbh Walshe, Ireland’s Long Journey on Abortion, The New York Times
  5. M.D. Nalapat, Follow Turkey in Muslim personal law, Sunday Guardian Live
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Published on September 12, 2016
Author:          Filed under: Developments
 

Attacks on Courts: Taking Wider Lessons from Recent Irish Supreme Court Revelations

Tom Gerald Daly, Associate Director, Edinburgh Centre for Constitutional Law

The past week has seen the launch of an unprecedented book detailing the inner workings of the Supreme Court of Ireland, which provides potentially useful general insights into how courts deal with political attacks.[1] The new book, by a leading journalist, Ruadhán Mac Cormaic, has laid bare the dissension within the Court between 2009 and 2011 as it sought to react to government proposals to reduce judges’ salaries in the context of the State’s acute economic crisis–a measure blocked by an absolute constitutional prohibition on reductions in judicial pay (Article 35.5. 1°). The pay cut was ultimately achieved through the sole procedure for amending the Constitution, a popular referendum, passed in 2011. As Mac Cormaic reveals, although the measure was widely viewed as entirely justifiable in light of swingeing public sector pay cuts, for the Court and the wider judiciary this absolute prohibition represented one of only two constitutional protections for judicial independence–the other being security of tenure.[2]

Excerpts of the book[3] and interviews with the author[4] this week reveal the serious difficulties the Supreme Court encountered in achieving consensus on how to effectively address the perceived threat: one judge’s suggestion to directly counter the perceived attack by hiring a high-profile public relations consultant met with little approval from other Court members; slow progress with attempts to achieve voluntary payments by judges to the tax authorities, in order to keep the constitutional prohibition intact, opened a space for increasing political attacks and chipped away at public support; press statements clarifying certain mischaracterisations of judicial opposition to the measure had limited success; and the front-runner to succeed the then Chief Justice favoured a ‘softly-softly’ strategy through low-key engagement with ministers. This mixture of delay and dissension meant that, as the tug-of-war with government progressed, the battle for political and public support was lost.

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Published on September 8, 2016
Author:          Filed under: Reviews