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I·CONnect

Blog of the International Journal of Constitutional Law

The Post-Soviet Constitutional Rights Community

William Partlett, Melbourne Law School

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]

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

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

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

What’s New in Public Law


–Nausica Palazzo, Post-Doctoral Researcher, University of Trento

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

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

Developments in Constitutional Courts

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

In the News

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

New Scholarship

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

Calls for Papers and Announcements

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

Elsewhere Online

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

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

Neil Modi, Visiting Researcher, Georgetown University Law Center

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

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

Deprivation of Citizenship for Terrorism: First Application in Switzerland


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

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

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

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

Why is this problematic?

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

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

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

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

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

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

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


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

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

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

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

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

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

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Published on November 29, 2019
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Navigating Constitution Building and Political Transitions in Sri Lanka

Dian A H Shah, National University Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]

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

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

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

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

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

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

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

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Published on November 26, 2019
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What’s New in Public Law


Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest and Indian Equality Law Visiting Fellow, University of Melbourne.

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

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

Developments in Constitutional Courts

  1. The Supreme Court of India holds hearings on the validity of civil liberties restrictions in Jammu and Kashmir.
  2. The Supreme Court of India referred unresolved questions in a case on the entry of women into places of worship to a larger bench.
  3. In a case that could reach the Supreme Court of Canada, a union federation representing 45,000 teachers in Quebec sues the province over a ban on the wearing of religious symbols by many public employees.
  4. The Supreme Court of India held that the office of the Chief Justice of India would be covered under the ambit of the Right to Information Act, which was transparency legislation enacted to provide citizens information from the government.
  5. The Supreme Court of Russia ordered the closure of a prominent human rights group for “breaking regulations.”

In the News

  1. The High Court of Justice of England and Wales held that a private television broadcaster could exclude Liberal Democratic and SNP candidates from a TV debate.
  2. The Parliament in Maldives voted to remove Chief Justice Dr Ahmed Abdulla Didi and Justice Adam Mohamed Abdulla from their office after a recommendation from the Judicial Service Commission for  alleged misconduct related to 17 instances where the apex court violated the constitution or usurped powers of parliament and other state institutions.
  3. The Constitutional Review Commission of the Gambia released a draft constitution which contains detailed provisions on, inter alia, term limits of the president and independent accountability bodies.
  4. Chile will hold a  referendum to replace the country’s dictatorship-era Constitution next year after nearly a month of civil unrest. The constitutional change has been a key demand of protesters .
  5. Legislators in the Cayman Islands accepted the United Kingdom’s proposed constitutional changes which include: a mandatory requirement for consultation on any proposed legislation or Orders in Council that will directly impact the Cayman Islands, the removal of key reserve powers from the governor to write legislation, disallow legislation and write standing orders.
  6. The Minister of State for Media Affairs of Jordan stated that the recent activity of the government concerning the merger and cancellation of various independent commissions requires a legal basis.
  7. The National Assembly of Nigeria expressed an interest in amending its Constitution to provide for a smooth transition of legislative powers.
  8. The Chinese Government criticized the decision of the Hong Kong High Court on the government’s mask ban against protesters, which the Court found unconstitutional. Judgment is available here.
  9. The Thai cabinet nominated six experts from outside the government to sit the committee with the competence to vet constitutional amendments.
  10. The new Interim President of Bolivia, Jeanine Anez, expressed her intention to hold an election soon and denied accusations of a coup by former leader Evo Morales. The Interim President has up to 90 days to call for an election pursuant to Article 169(I.) of the Bolivian Constitution .

New Scholarship

  1. Dimitry Kochenov, Citizenship (2019) (providing key elements of the concept of citizenship: status, rights, duties, and politics, as enacted in its granting and enjoyment).
  2. Timothy Zick, The First Amendment in the Trump Era (2019) (examining the growing number of First Amendment controversies in the Trump Era by tracing them to the concept of dissent while examining their connection with episodes throughout American history).
  3. Gary Lawson and Guy I. Seidman, Deference: The Legal Concept and the Legal Practice (2019) (presenting the first systematic study of deference in the law in a number of doctrinal manifestations, as a broad concept and practice which draws on material from actual court practice rather than ideal theory).
  4. Joshua C. Gellers and Trevor J. Cheatham, Sustainable Development Goals and Environmental Justice: Realization through Disaggregation? 36 Wisconsin International Law Journal (2019) (examining the extent to which the UN Sustainable Development Goals and voluntary national reviews reflect principles of environmental justice).
  5. Petra Schleiter, Georgina Evans, The Changing Confidence Relationship Between the UK Executive and Parliament in Comparative Context 72 Parliamentary Affairs 1 (2019) (examining how the changes introduced by The Fixed-term Parliaments Act 2011 strengthens parliament vis-à-vis the government, and discusses their implications against the background of contemporary constitutional practise in developed parliamentary democracies).
  6. Rivka Weill, From Earl Grey to Boris Johnson: Brexit and the Anglo-American Constitutional Model (2019) (historically and doctrinally arguing how Britain has been operating under a common Anglo-American constitutional model for the past 200 years and highlights its implications for comparative constitutional law).
  7. Andrew Fagan,  The Gentrification of Human Rights 41(2) Human Rights Quarterly 283 (2019) (outlining the concept of the gentrification of human rights, while also seeking to demonstrate how gentrification restricts the ability of human rights to engage robustly with rising deprivation, inequality, and marginalization within affluent, “liberal-democratic” societies”).
  8. Ben T. C. Warwick, Unwinding Retrogression: Examining the Practice of the Committee on Economic, Social and Cultural Rights? Human Rights Law Review 1 (2019) (providing a brief history of non-retrogression and identifies what backwardness the doctrine seeks to regulate, its doctrinal position and the steps needed to prove it in practice).
  9. European Law Journal, Special Issue (Jürgen Habermas) (2019) (bringing together a range of scholars to discuss Habermas’ contributions).

Call for Papers and Announcements

  1. The Law Faculty at the Comenius University in Bratislava and the Central and Eastern European Chapter of the ICON-S organize a regional workshop on November 26, 2019, of authors who contributed to the I·CONnect-Clough Center 2018 Global Review of Constitutional Law.
  2. Prof Anuscheh Farahat (Friedrich Alexander University Erlangen-Nuremberg) & Dr Ingrid Leijten (Leiden University), members of the Centre for Human Rights Erlangen-Nuremberg (CHREN) announced a conference on “Human Rights Overreach.” Interested applicant should send an abstract by December 20, 2019, to teresa.nunes.violante@fau.de. Abstracts should be no longer than 500 words and set out the topic and main argument of the paper, as well as its relation to conference them
  3. Queen’s University Belfast is recruiting a Research Fellow in the Colonialism and Transition Project.
  4. The Cork Online Law Review invites submissions for its 19th Edition, to be published on the website and in hard copy in early March 2020. The initial deadline is December 1, 2019, and the final deadline is January 13, 2020. All interested parties should submit their articles and enquiries to editor@corkonlinelawreview.com.
  5. The ILS Law College, Pune submission of abstracts for its conference honoring former Prof. S.P. Sathe on Contemporary Trends in Comparative Public Law. Abstracts due by December 16, 2019.
  6. The Faculty of Law and the Faculty of Arts at the University of Hong Kong will hold its first law and humanities summer school on June 8-13, 2020. Applications are due by January 6, 2020.
  7. The University of East Anglia invites applications for Economic and Social Research Council (ESRC) studentship (Masters and PhD) awards to work with various departments at the intersection of other social sciences.
  8. The International IDEA published a report on “The Global State of Democracy 2019 Report: Addressing the Ills, Reviving the Promise” which is packaged as a “global health check of democracy ”that aims to influence the global democracy debate, by nuancing the current doom and gloom narrative and proposing solutions to current challenges”.
  9. CUNY Law Review invites scholars, legal practitioners, advocates, and organizers to submit articles for consideration for publication in an upcoming volume of CUNY Law Review, dedicated to an upcoming symposium on democracy, especially on issues relating to 2020 Census, voter disenfranchisement, election security/hacking, lack of oversight over ballot counting technology.
  10. The student chapter of the American Constitution Society and Law Review at Barry University School of Law and Texas A&M University School of Law are hosting the Fifth Annual Constitutional Law Scholars Forum at the Barry University Dwayne O. Andreas School of Law Campus in Orlando, FL. More information is available here. The deadline to submit proposals is December 1, 2019.
  11. The Harvard Law Review published a series of infographics on the Supreme Court of the United States.
  12. The International Association of Centre for Federal Studies (IACFS) announced the Ronald L. Watts Young Researcher Award 2020 for the best unpublished article or paper on an aspect of federalism. Nominations and papers must be submitted to ronaldwattsaward@eurac.edu by April 30, 2020.

Elsewhere Online

  1. Gráinne de Búrca, John Morijn, Maximilian Steinbeis, Stand with Wojciech Sadurski: his freedom of expression is (y)ours, Verfassungsblog
  2. Mark Graber, McCulloch and Fundamental Rights Regimes, Balkinization
  3. Christos Panayiotides, Building a federated system of governance, Cyprus Mail
  4. Jeff King and Stephen Tierney, The Constitution Committee Reports on the European Union (Withdrawal Agreement) Bill, UK Constitutional Law Association Blog
  5. David R. Cameron, After Spain’s left parties agree on coalition, road to power goes through Catalonia, Yale MacMillan Centre
  6. A.G. Noorani, Supreme Court denies justice, Frontline
  7. Moussa Diop, Senegal and its national political dialogue in a time of inclusive democracy, ConstitutionNet
  8. Raul Sanchez Urribarri, Venezuela: Between Autocracy and Hope for Acceptable Elections, ConstitutionNet
  9. Mariana Velasco Rivera, Justifying a Coup d’État in the Name of Democracy?, Verfassungsblog
  10. Carlo Fusaro, The End of Parliamentary Government in Europe, Verfassungsblog
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Published on November 25, 2019
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New Constitution or Nothing! The Promise and Pitfalls of Chile’s Constitutional Moment

Lisa Hilbink, Department of Political Science, University of Minnesota[1]

In the wee hours of Friday, November 15th, Chile reached a historic milestone: Congressional representatives from nearly all political parties, across the political spectrum, signed an agreement to open the path to a new constitution. After four dramatic weeks of mass protests, and following two long days of intense negotiations, the national political leaders thus responded to one of the principal demands of the mobilized citizenry. In an uprising driven by pent-up rage over inequality, exclusion, and perceived systemic injustice, citizens have insisted on the replacement of Chile’s current constitution. That charter, inherited from the military dictatorship, was designed to entrench a neoliberal socio-economic model, and during the thirty years since the transition back to democracy, it has effectively served to prevent reforms that would strengthen the public sector and more equitably distribute wealth and power. Citizens thus view the revamping of that illegitimate document as a necessary part of the transition to a more just and democratic social order.

The congressional Agreement for Social Peace and a New Constitution answered the public’s call for a binding, national plebiscite to decide whether and how to write a new constitution. The plebiscite, to be held in April of 2020, will ask voters (1) if they want a new constitution (yes or no) and (2) which of two forms a constituent body should take: a mixed convention, half of whose members would come from the sitting Congress and half who would be elected uniquely for the convention,[2] or a fully separate constituent convention, whose members could not be sitting members of Congress and whose mandate would be limited to writing the new constitution.[3] The Agreement also laid out a calendar and some basic ground rules for the constituent process, including a two-thirds threshold for passage of all articles in the new constitution. Upon announcing the agreement, the congressional leaders made clear that the new constitution would be elaborated on a “blank page,” such that nothing in the existing constitution could bind the drafting body and only items achieving two-thirds support would become part of the new supreme law of the land. What was unthinkable just a few weeks ago, then, has thus become a reality. The Agreement formally marks the beginning of the end of the control that the authoritarian forces sought to extend over Chile’s political and economic development, and starts the country down the path to its first ever democratically-crafted constitution.[4] Yet the most challenging part is yet to come. What lies ahead is a long, demanding, and, no doubt, trying process, and there are no guarantees that it will not go off the rails. What are the factors that favor or threaten a successful constitutional transition in Chile?

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Published on November 24, 2019
Author:          Filed under: Developments
 

Special Undergraduate Series—Reservations Based on Economic Criteria: A Policy Assessment: Will the Government Succeed in Bringing an End to Poverty with Reservation?


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


–Manisha Bhau, B.A., LL.B Student (Hons.), National Law University, Delhi

Despite reports that the numbers have nearly halved, India is still home to about 364 million people leading lives without access to basic healthcare, nutrition and sanitation. There are a multitude of reasons behind India’s rampant poverty, and recently the Government of India amended the Constitution to allow states to enact reservation laws for the economically weak sections (‘EWS’).

The aim of this post is to enlarge the debate beyond the question of constitutionality of the 124th Amendment and to analyse the efficacy of the Amendment as a policy for economic upliftment and the wisdom of conflating the reservation with poverty removal programmes. The question is whether reservation is the right policy to support the poor, especially because of the role that caste plays in India in its overlap with poverty and the inability to come out of it.

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Published on November 23, 2019
Author:          Filed under: Analysis
 

Book Review: Oran Doyle on “The United Kingdom and the Federal Idea” (Robert Schütze and Stephen Tierney eds.)


[Editor’s Note: In this instalment of I•CONnect’s Book Review Series, Oran Doyle reviews The United Kingdom and the Federal Idea (Robert Schütze and Stephen Tierney eds., Hart Publishing 2018).]


–Oran Doyle, Trinity College Dublin; University of Pennsylvania

Laws do not exist as abstract disembodied propositions, akin to the axioms of geometry, but rather hold true in particular places at particular times. In a simple view of the post-colonial world, laws form the legal system of a state and have the same geographic extent as that state. But this picture is complicated by the laws of supranational or international organisations as well as by intra-state territorial differentiation.

Federalism, understood broadly, provides a conceptual framework that explains both how laws can a have different geographic dimension from the state and how different legal systems can apply in the same geographic area. Federal structures allow discrete political communities to be combined and/or recognised within a larger political entity. To prevent the larger political entity collapsing into a welter of competing and contradictory laws, however, some central authority must ensure the unity of the system as a whole. But the assertion of that authority may make the federal arrangements unacceptable to one or more of the discrete political communities.

The United Kingdom and the Federal Idea engages these issues with breadth, depth and rigour, in the exciting crucible of law and politics that is the UK Constitution. Ten thematic chapters, previously presented at a workshop in late 2015, are bookended by a thought-provoking Introduction and Conclusion, penned by Robert Schütze and David Armitage respectively. Although the UK is often characterised as devolutionary rather than federal, the contributors mostly adopt a less exacting account of federalism as, in Armitage’s words, ‘a family of ideas and practices’ (278) rather than specific institutional prescriptions.

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Published on November 22, 2019
Author:          Filed under: Reviews