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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

–Mauricio Guim, Instituto Tecnológico Autónomo de México (ITAM)

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 Germany ruled that the Church of the Flying Spaghetti Monster is not a religion and would not be afforded the same rights as Christian churches.
  2. The Supreme Court of Pakistan acquitted a woman isolated in death row for eight years after an accusation of insulting the Prophet Muhammad. The Court upheld the Pakistani law that punished blasphemy by death, but said that there was not enough evidence to convict the accused woman.
  3. The Supreme Court of Israel ruled that poker is a game of skill rather than luck, opening the door for the legalization of poker tournaments in Israel.
  4. The Supreme Court of Israel rejected the appeal presented by Palestinian writer Susan Albuhawa after she was banned from participating in the Kalimat Palestinian Literature Festival in East Jerusalem.
  5. The Constitutional Court of South Africa decided a landmark case in favor of women’s right to equality and land ownership. The Court’s ruling declared unconstitutional the apartheid-era law. Upgrading the Land of Tenure Rights, which recognized only men as the head of the family and as legal landowners.
  6. The Constitutional Court of South Africa ruled that mining companies cannot communities from their land without their consent, or without compensating them for their lands, even if the mining companies have mining rights over that property.
  7. The Supreme Court of the United States upheld a U.S. Court of Appeals of the D.C. Circuit decision that favored the 2015 net neutrality rules put in place by the Obama Administration.
  8. The Supreme Court of Israel rejected a challenge to a police decision to limit the use of metal detectors at the entrance of Temple Mount to Jews and other non-Muslim visitors.

In the News

  1. The President elect of Mexico, Andrés Manuel López Obrador, affirmed that he would not interfere with the Supreme Court’s decision to end the cannabis prohibition in Mexico.
  2. Mexico’s next interior minister plans to submit a bill to Congress to create a medical marihuana industry and allow recreational use.
  3. The Trump administration is seeking the Supreme Court endorsement to kill the “Dreamers” program, which protects about 2 million of undocumented immigrants who arrived to the United States as children.
  4. The federal judge who convicted former president of Brazil Luiz Ignacio Lula da Silva agreed to take a cabinet position in the new government of President Jair Bolsonaro.
  5. Poland’s populist party, the Law and Justice party, suffered a sweeping defeat in municipal elections, but won most seats in provincial assemblies, confirming that Poland is ever more deeply divided between its liberal cities and conservative countryside.
  6. President of Turkey Recepp Tayyip Erdogan is keeping the case of Jamal Khashoggi alive through a steady drip of new leaks.
  7. A 94-year-old man who served as a guard in Germany’s Stuthof concentration camp will be tried of charges of charges of assisting in the murder of hundreds of Jewish, Polish and Russian prisoners who perished there. Because the man was under the age of 21 when the events took place, he will be tried before a juvenile court.
  8. One of the founding members of Philippine’s lawyers group at the forefront of opposing President Rodrigo Duterte’s lethal war on drugs, Benjamin Ramos, was killed by three bullets as he was leaving his office for the night. Ramos is the 34th lawyer killed since Duterte became president two years ago.
  9. Hollywood actor Geoffrey Rush is suing the Australian tabloid, The Daily Telegraph, over a two front-page article accussing Rush of sexually harassing a young actress during a production in Sydney of King Lear. The case has become a moment of reckoning for both the Australian entertaining industry and the #MeToo movement.
  10. A report by the NGO Business for Social Responsibility concluded that Facebook failed to prevent its platform from being used to foment division and incite offline violence in Myanmar.
  11. According to statistics published by the Japanese government, suicides by young people in Japan rose to their highest levels in three decades in 2017.
  12. Since 2014, China has increased its used to internment camps to indoctrinate Uighur Muslims, an ethnic minority living in China, in the principles and values of the Communist Party. Inside the camp, Uighur Muslims are forced to listen to lectures, sing hymns praising the Chinese Communist Party, and write self-criticisms essays. In addition to mass detentions, Chinese authorities have expanded the use of informers and expanded police surveillance, installing cameras even inside people’s houses. Uighur minorities are interned in these camps without any due process and not knowing when will be released. China denies these allegations.
  13. The Britain’s information Commissioners Office released a report concluding that the defunct political consulting firm Cambridge Analytica violated British Law when it improperly harvested Facebook data to aid Donald J. Trump 2016 presidential campaign and would face a significant fine if it were not already in bankruptcy. The same report concludes that an insurance company owned by Arron Banks, the main backer of Britain’s campaign to leave the European Union, broke British law when it used costumer data to aid the Brexit effort.
  14. Italy approved a new law that significantly loosens gun restriction in that country. The law makes it possible to own assault rifles such as the AR-15, recently used in kill 11 people in a Synagogue in Pennsylvania.
  15. Iran responded to the Trump’s administration sanction saying that it would not bend to “ the language of force, pressure and threats” and vowed to break the sanctions.
  16. A Belgian court ordered former King Albert II of Belgium to submit a DNA test to determine whether he is Delphine Böe’s biological father, marking the first time a former king is brought to justice in Belgian history.
  17. A Shiite cleric who was central in Bahrain’s 2011 Arab Spring protests, Sheikh Ali Salman, was sentenced to life in prison. The NGO Amnesty International considers the Sentencia a “travesty of justice” that demonstrates Bahrain’s relentless and unlawful efforts to silence any form on dissent.
  18. The lawyer for a Christian woman accused of insulting Prophet Muhammad fled Pakistan after acquitted the woman of the blasphemy charges. The Court upheld the blasphemy law, but said there was not enough evidence to convict the accused. Mr. Malook, the lawyer of the accused, left Pakistan after a group of hard-liners threatened to kill him and the judges who acquitted the accused.

New Scholarship

  1. Deborah Hellman, The Epistemic Commitments of Nondiscrimination (presenting epistemic commitments behind the commitment to nondiscrimination, and analyzing the potential conflict between moral consideration and epistemic norms).
  2. Martin Brenncke, Judicial Law-Making in English and German Courts (2018) (analyzing the “extent of judicial power” in English and German legal systems from a comparative, constitutional and methodological perspectives).
  3. Faisal Kutty, Blasphemy and Apostasy “Laws” in the Muslim World: A Critical Analysis (2018) (analyzing Pakistani and Malaysian cases applying blasphemy and apostasy laws, and arguing that these laws are untenable in the modern world).
  4. Massimo Brutti & Alessandro Somma (eds.), Diritto: Storia e Comparazione (2018) (criticizing the recent tendency to present law as a depoliticized phenomenon, and proposing the study of legal rules in its space-time coordinates).
  5. Brian Christopher Jones, Dissonant Constitutionalism and Lady Hale (2018) (analysing the public role of judges and arguing that Justice Hale’s extra-judicial speeches display elements of cognitive dissonance in relation to the UK’s constitutional principles).
  6. Morwan Mausher, The Next Arab Uprising: The Collapse of Authoritarianism in the Middle East (2018).
  7. Graham Butler, In Search of a Political Question Doctrine in EU Law (2018) (arguing that there are traces of a political question doctrine in the jurisprudence of the European Court of Justice).
  8. Ryan Calo, Privacy Law’s Indeterminacy (2018) (analyzing privacy laws from the perspective of American Legal Realism).

Call for Papers and Announcements  

  1. Boston College Law School, with support from the Institute for Liberal Arts Submissions, invites faculty and graduate students to participate in a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
  2. The University of Illinois College of Law, the University of Bologna School of Law, and the John Hopkins Center for Constitutional Studies and Democratic Development will be hosting a conference titled “Constitutional History: Comparative Perspectives” on April 29 and 30 in Chicago Illinois. Paper proposals received by December 15, 2018 will receive priority. More information can be found here.
  3. The Asian Law Institute and the National University of Singapore will be hosting the first Asian Law Junior Faculty Workshop on June 13, 2019. Deadline for submitting abstracts is November 12, 2018. More information about the conference can be found here.
  4. Paper proposals are solicited for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives, to be held in Chicago on April 29 & 30, 2019.
  5. The ASLI has issued a call for Papers for the 16th ASLI Conference on “The Rule of Law and the Role of Law in Asia,” to be held on June 11-12, 2019 in Singapore. The deadline for submitting abstracts is December 3, 2018.
  6. The North-West University has issued a call for papers for the conference “Law, Roots and Space” to be held in Potchefstroom, SA on April 15-17, 2019. Proposals should be sent by November 30, 2018.

Elsewhere Online

  1. Richard Goldstone & Paul Hoffman, It is Time for an International Anti-Corruption Court, The Daily Maverick.
  2. Jelena Gligorijevic, Breaching Injunctions in Parliament, UK Constitutional Law.
  3. Kathryn Kovacs, Getting Agencies Back into the Game, The Regulatory Review.
  4. Stefanie Ramirez, Disinformation and the Threat to Democracy, The Regulatory Review.
  5. Adeel Hussain, Murder in the Name of Allah: Asia Bibi and Pakistan’s Blasphemy Law, Verfassungsblog.
  6. Marin K. Levy, Construing Precedent, Courts Law Jotwell.
  7. Jack Balkin, Content Moderation, The Press and the First Amendment, Balkinization.
  8. Jenny Gesley, Bosnia and Herzegovina–When the Constitution, Laws, and Political Participation of Minorities Clash, Foreign Affairs.
  9. Andrew Koppelman, How could Religious Liberty be a Human Right, Balkinization.
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Published on November 12, 2018
Author:          Filed under: Developments
 

I.CON’s Current Issue: Table of Contents

I.CON
Volume 16 Issue 3
Table of Contents

Editorial

The future of ICON-S: Looking toward 2021 and beyond; Authors of I.CON—Customer Care; In this Issue

Keynote address

Marta Cartabia, Europe today: Bridges and walls

Articles

Connor M. Ewing, With dignity and justice for all: The jurisprudence of equal dignity and the partial convergence of liberty and equality in American constitutional law

Sergio Dellavalle, Squaring the circle: How the right to refuge can be reconciled with the right to political identity

Michael Ilg, Economy of pain: When to regulate offensive expression

Lael Weis, Environmental constitutionalism: Aspiration or transformation?

Robert Alexy, Proportionality, constitutional law, and sub- constitutional law. A reply to Aharon Barak

Symposium: Constitutional silence

Richard Albert and David Kenny, The challenges of constitutional silence: Doctrine, theory and applications

Oran Doyle, The silent constitution of territory

Laurence Claus, Enumeration and the silences of constitutional federalism

Martin Loughlin, The silences of constitutions

Mohammad H. Fadel, The sounds of silence: The Supreme Constitutional Court of Egypt, constitutional crisis, and constitutional silence

Aileen McHarg, Navigating without maps: Constitutional silence and the management of the Brexit crisis

Gábor Halmai, Silence of transitional constitutions: The “invisible constitution” concept of the Hungarian Constitutional Court

I.CON: Debate!

Andrew Koppelman, How could religious liberty be a human right?

Gila Stopler, How could religious liberty be a human right? A reply to Andrew Koppelman

Andrew Koppelman, How could religious liberty be a human right? A rejoinder to Gila Stopler

Book reflections

Juliana Cesario Alvim Gomes, Nancy Fraser’s tridimensional approach to justice: Contributions and provocations to the practice of domestic litigators

Tom Gerald Daly, Keeping our horror fresh: Reminding ourselves of Europe as a savage continent

Book reviews

Julio Ríos-Figueroa. Constitutional Courts as Mediators. Armed Conflict, Civil-Military Relations, and the Rule of Law in Latin America (Vicente F. Benítez-R.)

András Sajó and Renata Uitz, The Constitution of Freedom (Julian Scholtes)

Niels Petersen, Proportionality and Judicial Activism: Fundamental Rights Adjudication in Canada, Germany and South Africa (Iddo Porat)

Alain Supiot, Governance by Numbers. The Making of a Legal Model of Allegiance (Marco Goldoni)

Michael Stolleis, Public Law in Germany: A Historical Introduction from the 16th to the 21st Century (Justin Collings)

Daniel Friedmann. The Purse and the Sword (Radek Píša)

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Published on November 11, 2018
Author:          Filed under: Editorials
 

Brazil’s “False Consciousness of Time”: The Rise of Jair Bolsonaro

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Guy Debord, the radical French philosopher whose words impacted the world during the protests of May 1968, once wrote: “The spectacle, considered as the reigning society’s method for paralyzing history and memory and for suppressing any history based on historical time, represents a false consciousness of time.[1] His words say much about a phenomenon that has increasingly impacted constitutionalism worldwide: the spectacle, this “false consciousness of time”, has gained strength where history and memory have been suppressed. Brazil is living, at this moment, its own “false consciousness of time,” a phenomenon that has challenged the interpretations of the most prominent political scientists and constitutional scholars in the world. It represents a systemic disruption of the understanding of the political system, its normal rules of operation and expectations of deliberation. The election of Jair Bolsonaro as Brazil’s next President is one of the most radical outcomes of this phenomenon. As such, it demands the continuous monitoring of the international community because it poses a real danger to liberal democracy not only in young democracies like Brazil, but even in mature ones.

Jair Bolsonaro was elected in a context of political crisis and deep distrust in the political system. Although he has been a Representative of the Lower House for 27 years and has been a member different political parties, he has presented himself as a political outsider. His current party – the Social Liberal Party (PSL) -, was, until recently, just one among many small parties in Brazil’s highly fragmented party system and was part of the so-called “under clergy”, a depreciative term that designates the group of congressmen with almost no influence over major political affairs. No more. Not only was Bolsonaro elected by 55% of the valid votes in the runoff, but also the number of PSL Congressmen jumped from 8 to 52 in the Lower House, and from 0 to 4 in the Senate.

This is a phenomenon never before seen in Brazilian history. Just for comparison, the Worker’s Party (PT), which competed with Bolsonaro in the second round, took more than twenty years since its foundation in 1980 to cross the threshold of 50 Representatives elected, and, unlike PSL, it is closely connected to grassroots movements that had already strength in the final years of the dictatorship (1964-1985). PT is still the second biggest and most ideologically identified party in the country, but it saw its parliamentary bench shrinking from 69 Representatives in 2014 to 56 now and from 13 Senators in 2014 to 6 in these elections. This is not, in my judgment, a normal political phenomenon. Something very unusual and strategically well thought out took place in Brazil, and, though similar movements can possibly be identified elsewhere, the Brazilian movement is also unique.

Even the most prominent political scientists in Brazil, until few months ago, did not see this coming. Fernando Limongi, from the University of São Paulo and the Brazilian Center for Analysis and Planning (CEBRAP), in a column for Valor Econômico, a major economic newspaper, wrote in September that “the candidate [Bolsonaro] conquered his niche, but he does not have ideas to expand it. And if he does not do it, he will die of starvation in the dug trench.” Marcos Nobre, from the State University of Campinas and CEBRAP, sustained, in an interview for El País in April, that “the polls do not show elasticity in his vote, he has a granite ceiling… That many people identify themselves with his candidature is really worrisome, but, from the electoral point of view, I cannot see the chances of his candidature moving forward.”

Read the rest of this entry…

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Published on November 10, 2018
Author:          Filed under: Developments
 

Deadline November 15–Call for Papers–Conference on “Amending America’s Unwritten Constitution”–Boston, May 16-17, 2019

Boston College Law School

with the support of

The Institute for Liberal Arts

invite submissions for

Conference on “Amending America’s Unwritten Constitution”

Boston College
Newton, Massachusetts
May 16-17, 2019

Submissions are invited from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics.

Convened by Richard Albert (Texas), Yaniv Roznai (IDC), and Ryan C. Williams (Boston College), this Conference will be held on the campus of Boston College on Thursday and Friday, May 16-17, 2019.

Subject-Matter of the Conference

Recent constitutional scholarship reveals renewed interest in how unwritten constitutional norms and conventions underlying U.S. constitutional practice can and do change. The conference aims to advance the field by focusing on theoretical, conceptual, and practical questions concerning what it means to “amend” America’s “unwritten constitution” (including what has been called the “small-c constitution”), how the “unwritten constitution” can be amended, and who the relevant constitutional actors are in catalyzing and concretizing these changes.

Structure of the Conference

The conference will be structured around eight keynote lectures in addition to concurrent panels comprised of faculty and graduate students in law, history, political science and other fields of interest.

The conference keynote lectures will address the following themes:

1. What and Where is America’s Unwritten Constitution?
Mark Graber (Maryland)

2. What is an “Amendment”?
Sandy Levinson (Texas)

3. America’s Unwritten Constitution
Miriam Seifter (Wisconsin)

4. Amending Unwritten Constitutional Norms and Conventions
Frederick Schauer (Virginia)

5. Comparative Perspectives on America’s Unwritten Constitution
Mark Tushnet (Harvard)

6. The Role of the Political Branches in Unwritten Amendment
Vik Amar (Illinois)

7. The Role of the Courts in Unwritten Amendment
Carolyn Shapiro (Chicago-Kent)

8. The Role of the People in Unwritten Amendment
Emily Zackin (Johns Hopkins)

In addition to the keynote lectures, the two-day conference will feature concurrent panels featuring papers selected from this Call. The purpose of the panels is to convene groups of faculty and graduate students for a high-level discussion on enduring and emerging questions raised by the conference themes, broadly-defined. The panels will be chaired by the keynote lecturers. These panels will offer participants a combination of rigorous scholarly exchange and constructive guidance on the ideas in the papers. Conference meals will offer an opportunity for more relaxed social interaction.

Eligibility

Submissions for the concurrent panels are invited from faculty and students enrolled in graduate programs from various disciplines (e.g. history, law, political science, sociology). Papers are welcomed on any subject related to the eight keynote topics identified above. Papers may take comparative, doctrinal, empirical, historical, philosophical, sociological, theoretical or other perspectives.

Submission Instructions

Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019. Scholars should identify their submission with the following subject line: “Conference on Amending America’s Unwritten Constitution” —Abstract Submission.” Please state in your submission to which of the above-mentioned eight themes your abstract suits. All materials should be submitted in PDF.

Notification

Successful applicants will be notified no later than December 1, 2019.

Costs

There is no cost to participate in this Conference. Group meals will be generously provided by Institute for the Liberal Arts at Boston College. Successful applicants are responsible for securing their own funding for all other expenses.

Questions

Please direct inquiries in connection with this Symposium to:

Richard Albert
The University of Texas at Austin
richard.albert@law.utexas.edu

Yaniv Roznai
Interdisciplinary Center (IDC) Herzliya
Email: yaniv.roznai@idc.ac.il

Ryan C. Williams
Boston College Law School
willibit@bc.edu

About the Convenors

Richard Albert is William Stamps Farish Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, chair-elect of the AALS Section on Comparative Law, and a former law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Yale, Oxford and Harvard.

Yaniv Roznai is a Senior Lecturer at the Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya. He holds a PhD and LL.M from The London School of Economics (LSE), and LLB and BA degrees in Law and Government from the IDC.  Yaniv was a Post-Doc Fellow at the University of Haifa and New York University (NYU), and a visiting researcher at Princeton University. He is the Co-Founding Chair of the Israeli Association of Legislation, and former secretary general of the Israeli Association of Public Law. His book, “Unconstitutional Constitutional Amendments – The Limits of Amendment Powers” was published in 2017 with Oxford University Press – Constitutional Theory Series.

Ryan Williams is an Assistant Professor of Law at Boston College Law School.  He writes about constitutional law, focusing particularly on the original understanding and historical development of constitutional provisions. His work has appeared or is forthcoming in The Harvard Law Review, The Yale Law Journal, the Columbia Law Review, the Virginia Law Review, and the Stanford Law Review, among others. Prior to joining Boston College, Ryan was an Associate-in-Law at Columbia Law School and a Sharswood Fellow at the University of Pennsylvania Law School.  He holds a J.D. from Columbia Law School.

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Published on November 10, 2018
Author:          Filed under: Developments
 

Special Contribution to I-CONnect–Brazilian Supreme Court Justice Luís Roberto Barroso–The Republic that is Yet to Be

[Editor’s Note: On this special occasion of the 30th anniversary of the Brazilian Constitution, Justice Luís Roberto Barroso of the Brazilian Supreme Court shares his views on present-day Brazil. A longer version of Justice Barroso’s reflections is available here.]


–Luís Roberto Barroso, Justice at the Brazilian Supreme Court; Professor at the Rio de Janeiro State University; Senior Fellow at Harvard Kennedy School.

As we celebrate the thirtieth anniversary of the Brazilian Constitution, it is time to look back and take stock of the achievements and frustrations of these past years. On the positive side of our evaluation, we may include: thirty years of institutional stability, the achievement of monetary stability and significant social inclusion. In a single generation, we defeated dictatorship, controlled inflation, and won striking victories over extreme poverty. No battle is unwinnable.

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Published on November 9, 2018
Author:          Filed under: Developments
 

Constitutional Amendments as Transnational Political Projects: From Pakistan to Ireland, to Hungary And Finally to Europe

Renáta Uitz, Central European University

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

On October 31, 2018 the Supreme Court of Pakistan by the judgment of a 3-judge bench acquitted Asia Bibi of blasphemy charges.[1] Ms Bibi has been on death row since her initial conviction in 2010. The criminal prohibition of blasphemy in Pakistan reached its current form in 1986, under the rule of General Zia ul-Huq. The death penalty was imposed after the Federal Shariat Court found that life imprisonment as an alternative punishment was not compatible with the fundamental principles of Islam.[2]

Asia Bibi’s case originated from a petty argument: while working in the fields, Muslim women accused Ms. Bibi, a Christian, with contaminating a bucket of drinking water. The Supreme Court acquitted her due to procedural shortcomings in the case, including inconsistencies in witness statements. That the blasphemy ban is used as a tool of revenge was pointed out by the Supreme Court in 2015, quoting from the Judicial Training Toolkits of the Legal Aid Society:

The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.[3]

This 2015 judgment was rendered in the case of a bodyguard who murdered the governor of the state of Punjab after he had visited Ms. Bibi in jail.

The weekend before the acquittal of Asia Bibi, on October 27, 2018, the Irish voters overwhelmingly voted to remove the prohibition of blasphemy from the Irish Constitution (Article 40.6.1). This 37th Amendment was passed by a margin of 64.85% to 35.15%, with each constituency voting in favor.[4]

Read the rest of this entry…

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Published on November 8, 2018
Author:          Filed under: Analysis
 

Call for Panels and Papers–2019 ICON•S Conference on “Public Law in Times of Change?”–July 1-3, 2019–Santiago de Chile

ICON·S | The International Society of Public Law is pleased to announce that its 2019 Annual Conference will be held at the Pontifical Catholic University of Chile in Santiago, on July 1-3, 2019. This will be the sixth Annual Conference of ICON·S, following the five Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018) which have been overwhelmingly successful, thanks to the support of our Members.

ICON·S now invites panel and paper submissions for the 2019 Annual Conference on “Public Law in Times of Change?”.

Public law is facing a myriad of new challenges – including rising popular distrust in government, increasingly closed borders, and complex economic and technological change. We are arguably living in hard times for global public law. But will these challenges result in radical changes to the field as we know it, or will public law adapt and respond in ways that reinterpret and reinvigorate its core commitments to democracy, the rule of law, and human rights in a manner that is continuous with our current practices?

Countries around the world are witnessing the reversal of longstanding democratic gains, and new authoritarian threats. Yet there are signs of resilience in the global and national public law order: popular referenda have delivered gains as well as losses for democracy; women and young people have marched in defence of public law values; and justice is being crowd-sourced and data-driven, not just undermined by foreign cyber-attacks and “fake news”.

Under the strain of technological changes and shifts in economic globalisation, the world is also confronting large-scale changes in the structure and scope of global governance and of the “administrative” state. The Welfare State is under “siege” and at both international and domestic levels the problem of economic injustice is dominating the political and socio-economic debate around the globe.

International and regional bodies are re-orienting their focus to respond to these new challenges. And commitments to constitutional and administrative reform likewise remain strong in many legal orders. They continue to engage in formal processes of constitutional review, often as part of a transition from authoritarian to democratic, and colonial to post-colonial rule: from Chile to Myanmar, Bolivia to Tuvalu, Yemen to Sudan, and from the Philippines to Gambia. Many countries are actively debating proposals for major constitutional and legal reform. Others are grappling with the legacies of past reforms and transitions, and asking whether they were sufficient to address legacies of colonialism, and the abuse of human rights, and flagrant disregard for the rule of law.

But how far can public law go in responding to these issues? Are the sources of the current democratic crisis so deeply economic and structural that they evade any meaningful public law response? Are they rooted in debates over national identity and borders, which public law can address only partially and indirectly at best? Or does public law have the resources to adapt and respond to these challenges? Can public law, for example, help shape the future direction of state and global governance, or will changes in national and international governance in fact reshape public law as we know it?

This Annual Conference will seek to address these and related issues, bringing together leading scholars, political leaders and jurists from around the world to debate these questions, and their relevance to Latin America, their own countries, and the world.

The Conference will feature a keynote address by Justice Luís Roberto Barroso of the Supreme Federal Court of Brazil, as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate, and panel must be formed in accordance with the Society’s commitment to gender balance. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Please kindly note that each participant can present not more than 2 papers and participate – as presenter, chair or discussant – in 4 panels maximum.

Proposals of fully formed panels may be made of – or include some – papers written and presented in Spanish. In these latter cases, paper abstracts and/or panel description must in any event be submitted in English.

Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

All submissions must be made through the ICON·S website by March 9, 2019. To access the submission page, you need to be a member of ICON·S. Please register or log in with your existing ICON·S account and make sure you have paid your membership fee.

Successful applicants will be notified by April 1, 2019.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON·S Santiago 2019!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Richard Albert, Gráinne de Búrca, Mariana Canales, Claudia Golden, Ran Hirschl, David Landau, Ruth Rubio Marin, Francisco Urbina, Cristián Valenzuela, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2019 Organizing Committee

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Published on November 8, 2018
Author:          Filed under: Developments
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VIII: Popular Consultations Regarding Mining Projects in Colombia

[Editor’s Note: This is the final installment in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here, Part VI is available here and Part VII is available here. We once again thank the Externado University of Colombia for organizing this symposium.]


–Magdalena Correa Henao, Head of the Constitutional Law Department at Universidad Externado de Colombia

In this entry, I will focus on the case of popular consultations about mining projects in Colombia, as an excellent example to figure out how democratic democracy actually is.

Popular consultation is a constitutional mechanism for citizen participation (Art. 40.2. and 105 of the Constitution and Laws 134/94 and 1757/15) that allows the people to make binding decisions regarding a question posed by the president, governor, or the mayor in these cases (Article 8, Law 134/94). In case of mining projects, consultation is required by law (Article 33 of law 136/94).

However, those rules were ignored for several years. It was until 2013 that the subject of popular consultation about mining projects became important when people started to use them as a form of resistance to the national government´s policy of promotion of extractive industries (or the so called “mining locomotive” that would foster economic development in Colombia). Since 2013, Colombia has had 9 local consultations about extractive projects[1]. In 100% of cases people said “NO” to the development of those projects. Moreover, 44 additional consultations are currently in process.

Here, I will focus on these popular consultations, and not in other types of local decisions regarding the development of mining projects[2].  Read the rest of this entry…

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Published on November 8, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VII: The Political Parties: From a Two Party System to the Crisis of Representation in Colombia

[Editor’s Note: This is Part VII in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here and Part VI is available here.]


–Luisa Fernanda García López, Profesora Principal, Universidad del Rosario

The Colombian political system is considered to have the largest institutional continuity in Latin America. However, the degree of the political parties’ implication within the political reality of the country has been rigid and without obligation during the country’s different institutional transformations. The political parties have been real participants of the voting and the legislative systems, but not real participants during the political reforms particularly during the one in the 1990s. Between 1958 and 1991, Colombian democracy was well known for being a restricted or controlled democracy because the national agreement closed off political participation to other movements and political parties. Taking turns in office was limited to the two traditional parties. The limitations by both the Conservative Party and the Liberal Party created huge unpopularity and promoted high levels of abstention during elections. Repercussions began in the 1980s. During this time of huge instability, strong violence and confrontations among several guerrilla groups started to settle down. On one hand, the Medellin cartel allied with the M-19 a guerilla group that stormed the Court House in 1986 and decimated the Court Criminal Chamber. On the other hand, the Cali cartel interfered in the government elections by funding Ernesto Samper’s presidential campaign who was elected president in 1994. Finally, paramilitary groups were initially named “Convivir” (Cohabit) to fight the guerrillas’ kidnapping and drug trafficking that dominated most of the country. Thereafter, in the early 1990s, these groups entered in the business and culture of drug trafficking, and became illegal groups called paramilitary. This Colombian reality shows the lack of solid institutions, neither leaders nor strong political parties that actually represent the Colombian society.

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Published on November 7, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VI: Explaining the Institutional Role of the Colombian Constitutional Court

[Editor’s Note: This is Part VI in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here and Part V is available here.]


–Diego González, Professor of Constitutional Law at Universidad Externado de Colombia

The standard opinion suggests that the significance and the very power of the Colombian Constitutional Court (CCC) is a consequence of having dysfunctional legislative bodies and weak administrative agencies. According to this, the CCC is a central player in the political system as long as it has attempted to approach some of the black holes left by the political branches, created by either the lack of political will or by dysfunctional public policies. This article contends that this is only partially true. Other sets of reasons can help explain why the CCC has developed as it has. This paper I presented at the Externado Symposium explores four arguments: historical, normative, conceptual and practical.

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Published on November 6, 2018
Author:          Filed under: Analysis