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I·CONnect

Blog of the International Journal of Constitutional Law

Interethnic Vote Pooling, Institutional Frailty, and the Malaysian Elections of 2018

[Editor’s Note: This is the second entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Donald L. Horowitz, Duke University

In the early 1950s, as Malaya was approaching independence, the British decided to conduct the first elections ever held in the country at the town council level, starting with Kuala Lumpur.  Not long before, the United Malays National Organization (UMNO) had had a leadership crisis.  Its founding president, Dato’ Onn bin Ja’afar, had resigned when the party failed to agree to accept non-Malay members and decided to continue as a Malay-only organization.  Onn had gone on to found the multiethnic Independence of Malaya Party (IMP) to contest the local elections.  The IMP looked to be a formidable competitor to UMNO in Malaya’s towns, most of them with non-Malay—especially Chinese—majorities.  The leadership of the Malayan Chinese Association (MCA), founded a few years earlier, was favorable to the IMP, but the MCA leader in Kuala Lumpur, H.S. Lee, decided to join with UMNO’s leader in KL to form the UMNO-MCA Alliance, which, by pooling Malay and Chinese votes, managed to defeat Onn’s IMP and went on to do so in one council election after another all over the country.[1]

The Alliance became a permanent preelectoral coalition that, with the later addition of the Malayan Indian Congress (MIC), went on to sweep all but one of the 52 seats contested at the 1955 national elections that preceded independence.  By pooling the votes of Malays, then barely half the population but at the time a greater fraction of the voting population, with the votes of Chinese and Indians, the coalition overwhelmed the opposition. Even after more non-Malays became citizens, the Alliance also won the first post-independence election in 1959. In each case, it put up a single slate of candidates in single-member constituencies across the country. With the aid of some parties in Sabah and Sarawak after those Borneo states joined with Malaya to form Malaysia in 1963, the Alliance—later called the Barisan Nasional or BN—won the next dozen general elections as well.  In 2018, however, it lost to a competing coalition, the Pakatan Harapan (or Coalition of Hope), which practiced the interethnic vote pooling pioneered by the Alliance.  Embedded in this practice are some questions of constitutional and electoral-system design.

By 2018, many forces had undermined the Barisan’s winning formula of pooling the votes of Malaysia’s various ethnic groups and had especially eroded the support of Chinese and Indians. Even as early as 1959, when many Chinese had just become citizens, the then-prime minister, Tunku Abdul Rahman, effectively sent many new citizens off to Chinese opposition parties by abruptly failing to meet some claims advanced by the MCA.  A decade later, when Chinese opposition parties celebrated certain state-level victories at the polls, they touched off a violent Malay reaction that produced a 21-month suspension of parliament and a new program of preferences for Malays in business, education, and employment.  That program, in turn, drove more non-Malays to the opposition, further weakening the contribution the MCA and MIC could make to the ruling coalition in succeeding elections.

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Published on June 22, 2018
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‘Westminster’ Conventions in ‘Eastminster’: Reflections on the Role of the Heads of State after the Malaysian Tsunami

[Editor’s Note: This is the first entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Andrew Harding, National University of Singapore

The controversial and heady events on and around 9-10 May 2018 are set out in the accompanying narrative in the introduction,[1] to which the reader is referred by way of background and for details of Malaysia’s tumultuous 14th general election (GE14). In this contribution I examine the operation of the constitutional conventions surrounding the appointment by heads of state of the federal and state governments. Although this was the first ever government transition at the federal level, such transitions have occurred several times at the state level. However, these state experiences indicate that such transitions are not always smooth,[2] and indeed even in GE14 there have been problems following state assembly elections in three of the states – Perak, Sabah and Perlis. These cases raise forcefully the question whether the conventions are in practice understood and implemented according to the Westminster model. They also raise the question whether, as written constitutional law, they might be expressed more fully, as Jaclyn Neo has argued in her recent post.[3] This problem of operating Westminster conventions in what Harshan Kumarasingham calls an ‘Eastminster’[4] has been evident on several occasions in Malaysia.[5]

Malaysia has 13 states, of which 12 held state assembly elections at the same time as the federal election on 9 May, Sarawak having already held state elections in 2016. Nine of the states have a traditional Ruler and they select one among them on a rotating basis as head of state at the federal level (the Yang di-Pertuan Agong). The other four states (Penang, Malacca, Sabah, and Sarawak) have a Yang di-Pertua Negeri or Governor, who is usually an experienced or retired public servant. Under Malaysia’s Federal Constitution, Schedule 8, the state constitutions must conform to the federal model of constitutional monarchy, in which Westminster-style conventions must be observed. These are rendered in the text of the federal and state constitutions. The power to appoint the Prime Minister in Article 43(2) of the Federal Constitution is as follows: ‘… the Yang di-Pertuan Agong shall first appoint as Perdana Menteri (Prime Minister) to preside over the Cabinet a member of the House of Representatives who in his judgment is likely to command the confidence of the majority of the members of that House’. Again along the lines of the Westminster conventions Article 43(4) states: ‘If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di-Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet’. These provisions are precisely mirrored in all of the state constitutions.[6]

Having their origins in what can be termed the customary law of the British constitution, the Westminster conventions have been written into the texts of many Commonwealth countries.[7] The operation of these conventions requires understanding of how they are supposed to operate. Yet even if rendered in written law in the process of transplantation, they must operate in a specific political and cultural context. For this reason these conventions have given rise to many difficulties, not just in Malaysia but across many Commonwealth countries.[8]

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Published on June 21, 2018
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Introduction to I-CONnect Symposium: Malaysia Boleh! Constitutional Implications of the Malaysian Tsunami

[Editor’s Note: I-CONnect is pleased to feature a week-long symposium on the recent landmark Malaysian election. We are very grateful to our organizers, Professors Jaclyn L. Neo, Dian AH Shah, and Andrew Harding, for assembling a wonderful group of scholars to discuss the elections from different perspectives.[1]]

Jaclyn L Neo, Dian AH Shah, and Andrew Harding, National University of Singapore

This week, I-CONnect hosts an online symposium examining the constitutional implications of the recent general elections in Malaysia which led to the first democratic change of federal government in the history of independent Malaysia. The online symposium will feature six posts from the following constitutional law scholars who have been keen observers of democratic developments in Malaysia:

  1. Andrew Harding, Professor, National University of Singapore, Faculty of Law
  1. Donald L. Horowitz, James B. Duke Professor Emeritus of Law and Political Science, Duke University
  1. Jaclyn L. Neo, Associate Professor, National University of Singapore, Faculty of Law
  1. Dian AH Shah, Research Fellow, National University of Singapore, Faculty of Law
  1. Kevin YL Tan, (Adjunct) Professor, National University of Singapore, Faculty of Law
  1. Shad Saleem Faruqi, Emeritus Professor, University of Malaya, Faculty of Law.[2]

In this introduction, we will first set out the complex events of and relevant to the 10 May 2018 transition, which ended six decades of dominant-coalition rule since independence in 1957. This was Malaysia’s 14th general election (GE14), and it involved state assembly elections in 12 of the 13 states as well as for the Federal Parliament. In this ‘Malaysian tsunami’, when all federal and state counts had been conducted, the incumbent Barisan Nasional (BN), had lost almost half of its seats in the Federal Parliament, lost control over all but two state governments (Pahang and Perlis: another, in Sabah, remains a matter of dispute, as is explained below). The BN share of the federal vote fell from about 47% to about 36%. It won only 79 of 222 seats in the Federal Parliament. In contrast, the Pakatan Harapan (PH, or ‘Coalition of Hope’), a new coalition of four political parties led by former Prime Minister Mahathir Mohamad, won 47.3% of the popular vote and control over 113 seats in the Federal Parliament. This is just over the 112 seats needed to form a simple majority in Parliament, but PH’s dominance is bolstered by its alliance with Warisan (a party in Sabah) and a few independent candidates, which means that PH and its allies now have 122 seats in Parliament. In addition the PH won control of six of the state assemblies, two remaining with the BN, two being won by the Islamic party PAS, and two being hung (Perak and Sabah).

To put it simply, PH was not widely expected to win.[3] Early polls showed that BN was likely to retain control over the federal government, especially by virtue of its slightly weakened but still supposedly solid support among ethnic Malay voters. However,  it became increasingly apparent during the short election campaign that voters were particularly angered by reports of the lavish lifestyles of Prime Minister Najib Tun Razak and his wife, as well as allegations of corruption against him involving state investment fund 1MDB described by the US Attorney-General Jeff Sessions as “kleptocracy at its worst”. The Malaysian voters contrasted these excesses to their own experience of rising prices, stagnant growth, a severely weakened currency, road tolls, and the imposition of a 6 per cent Goods and Services Tax.

Besides the economic factors, many voters were incensed by attempts by the Election Commission (EC) and the BN government to reduce the opposition vote or corral it by gerrymandering and malapportionment of constituencies into large, urban constituencies in contrast to much smaller, rural constituencies where the BN expected to find its base. A constituency-delimitation exercise that massively favoured the BN in terms of constituency sizes and boundaries[4] was rushed through Parliament days before voting. In addition, the Anti-Fake News Act was passed just slightly more than a month before polling day, apparently designed to prevent discussion of the corruption allegations during the campaign. The EC also angered voters by setting polling day for the middle of the working week, Wednesday 9 May, thus breaking with a practice of holding polls at the weekend. This was seen as an attempt to suppress the vote as many voters would need to obtain leave to travel to their home town to vote, and then return in time for work the following day. When the major domestic budget flight provider Air Asia laid on extra 120 flights and fixed flat low rates for fares, the government applied extreme pressure via the aviation regulator on Air Asia to cancel flights. As Malaysia does not have an automatic registration for elections, the EC essentially prevented voters who registered after 1 January 2018 from voting by failing to update the register of electors. This is despite an earlier statement by the EC in January 2018 encouraging voters to register for elections. The entire campaign period was only 11 days, which made it difficult for overseas voters to receive and return their ballot papers in time for their votes to be counted. In addition, the EC placed unnecessary restrictions affecting the PH campaign. One forced all of the four PH parties to campaign under one logo instead of their well-known party logos. Another rule restricting use of portraits of leaders to the candidate and the party president and vice-president prevented widespread use of portraits of PH’s two main leaders, Tun Mahathir Mohamad and Datuk Seri Anwar Ibrahim, who did not hold party positions.

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Published on June 20, 2018
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What’s New in Public Law

Monica Cappelletti, School of Law and Government, Dublin City University (DCU), Ireland

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 Federal Constitutional Court of Germany confirmed the constitutionality of the ban on strike action for civil servants.
  2. The Turkish Constitutional Court rejected Peoples’ Democratic Party’s (HDP) imprisoned presidential candidate Selahattin Demirtaş’s request for release.
  3. The Constitutional Court of Kosovo announced the ruling on the legality of the government’s decision to increase the salaries for its staff.
  4. The Constitutional Court of Colombia ordered the State of New Granada to provide health care to Venezuelans who are in that country due to the crisis afflicting the country.
  5. The Supreme Court of Canada confirmed that the Canadian Human Rights Tribunal does not have the jurisdiction to consider whether Canadian laws are discriminatory.
  6. The US Supreme Court invalidated the Minnesota ban on voter political apparel.
  7. The South African Constitutional Court declared that the provision of the Criminal Procedure Act, which did not allow all victims of sexual abuse to lay criminal charges 20 years after the incident occurred, was unconstitutional and invalid.

In the News

  1. The Polish President proposed 15 questions for a constitutional referendum.
  2. The German MPs accused the government of blocking Anis Amri investigation.
  3. The Austrian Government decided to shut down seven mosques and expel imams.
  4. The Irish Government gave the approval for a referendum on removal of blasphemy offence from the Constitution.
  5. The Irish Government decided to introduce the abortion bill in early July.
  6. The Irish Government announced it will appeal to the Grand Chamber of the European Court of Human Rights over the court’s refusal to revise its 1978 judgment on the “Hooded Men” last March.
  7. The Greek and the Macedonian Presidents agreed on the new name of the former Yugoslav Republic that would be Republic of North Macedonia.
  8. The Greek Parliament debates no-confidence motion in government after the agreement with Macedonia regarding the new name.
  9. The UK Government published amendments to EU withdrawal bill.
  10. The President of Ukraine confirmed that the Constitutional Commission is finalizing the draft constitutional amendments on Ukraine accession to EU and NATO.
  11. The Communications and Multimedia Minister of Malaysia proposed to include the right to access the internet in the Federal Constitution.
  12. The South Korean Government integrates the “First Public Blockchain Platform”.
  13. The Australian Government responded to the Royal Commission into Institutional Responses to Child Sexual Abuse.
  14. The President of Madagascar announced that a new government has been appointed after a court ruling which required a “consensus” administration to resolve a crisis sparked by electoral reform.
  15. The Chinese Government made RFID chips mandatory in cars to track citizens.

New Scholarship

  1. Richard Albert, Malkhaz Nakashidze & Tarik Olcay, The Formalist Resistance to Unconstitutional Constitutional Amendments, 70 Hastings Law Journal (forthcoming 2019) (explaining the formalist foundations of the rejection of the doctrine of unconstitutional constitutional amendment)
  2. Martin Belov, Global Constitutionalism and Its Challenges to Westphalian Constitutional Law (2018) (assessing the structural and functional transformations in the Westphalian constitutional tradition produced by the emergence of supranational and global constitutionalism).
  3. Benjamin L Berger & Richard Moon, Religion and the Exercise of Public Authority (2018) (exposing the assumptions about legal and political life that underlie the concept of state neutrality and reveals its limits as a governing ideal).
  4. The British Institute of International and Comparative Law (BIICL) completed a study for the Business Network on addressing conflicts between international human rights standards and national laws.
  5. Eddie Bruce-Jones, Race in the Shadow of Law. State Violence in Contemporary Europe (2018) (analyzing the European legal responses to institutional racism).
  6. Alessandro Ferrari and James Toronto (eds.), Religions and Constitutional Transitions in the Muslim Mediterranean. The Pluralistic Moment (2018) (investigating the role of Islam and religious freedom in the constitutional transitions of six North African and Middle Eastern countries, namely Morocco, Algeria, Tunisia, Egypt, Turkey, and Palestine).
  7. Petra Gümplová, Popular sovereignty over natural resources: A critical reappraisal of Leif Wenar’s Blood Oil from the perspective of international law and justice, (2018) 7(2) Global Constitutionalism (discussing the concept of popular sovereignty over natural resources and its possible applicability to a broader account of natural resource justice based on a moral interpretation of international law).
  8. Robert Schütze and Stephen Tierney (eds.), United Kingdom and The Federal Idea (2018) (This collection looks at federalism from the perspective of constitutional law, taking the United Kingdom as a case study)
  9. Marta Simoncini, Administrative Regulation Beyond the Non-Delegation Doctrine. A Study on EU Agencies (2018) (investigating the crucial question about the legitimacy of the ever-increasing role of agencies in the enforcement of EU law).
  10. Paul Yowell, Constitutional Rights and Constitutional Design. Moral and Empirical Reasoning in Judicial Review (2018), (analyzing how decisions courts in constitutional rights cases make pervade our political life and touch on our most basic interests and values).
  11. Diego Werneck Arguelhes and Leandro Molhano Ribeiro, ‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory, (2018) 7(2) Global Constitutionalism (exploring critically the collective decision-making as an ‘institutional fact’ regarding the Brazilian Supreme Court case).

Call for Papers and Announcements

  1. The Arab Association of Constitutional Law is recruiting a new executive director. The application deadline is 9 July 2018.
  2. The Journal of Commonwealth Law and the Common Law Group at the Université de Montréal, will host a conference entitled, Adjudicating Human Rights in Administrative Agencies and invites submissions of abstract. The deadline is 1 August 2018.
  3. The European Journal of Legal Studies (EJLS) welcomes articles for the Autumn 2018 Issue. The deadline is 15 July 2018.
  4. The European Journal of Legal Studies (EJLS) announces two young scholar prizes for the academic year 2018/2019: the annual ‘EJLS New Voices Prize’ and the best ‘EJLS (Young Scholars) General Article’. All articles by young scholars accepted for publishing with EJLS in Autumn 2018 and Spring 2019 Issues are entering for the competition.
  5. The National Law University Jodhpur (NLUJ) Law Review welcomes submissions of long articles, short articles and notes and comments for the Second Issue.
  6. The Jamia Law Journal invites original, unpublished manuscripts from all academicians, judges, and legal professionals from India and abroad. The deadline is 1 July 2018.

Elsewhere Online

  1. Anna Dziedzic, Foreign Judges on Constitutional Courts, Blog of the IACL, AIDC.
  2. Melanie Fink and Kristof Gombeer, The Aquarius incident: navigating the turbulent waters of international law, EJIL: Talk!
  3. Gábor Halmai, The Hungarian Constitutional Court betrays Academic Freedom and Freedom of Association, Verfassungsblog
  4. Nyi Nyi Kyaw, Myanmar’s Constitutional Reform Process: A pragmatic prioritization of process over substantive reform?, Constitutionnet
  5. Lila Margalit, Room for Optimism? Israeli Supreme Court Presses for Implementation of Ruling on Inmates’ Right to Personal Space, Lawfare Blog.
  6. Nidhal Mekki, Local elections in Tunisia: Implementing the constitution and reinforcing the transition, Constitutionnet.
  7. Michael Sánchez Rydelski and Cath Howdle, Brexit: Some conceptual clarifications concerning EFTA and the EEA, EU Analysis Blog.
  8. Stijn Smismans, Brexit and EU27 citizens’ rights: a proposal for a Protocol, EU Analysis Blog.
  9. Maxime St-Hilaire has a series of eight posts on the recent Henderson judgment in Canada: Part I, Part II, Part III, Part IV, Part V, Part VI, Part VII, and a special entry on a re-imagined judgment in the case (in French).
  10. Tomasz Tadeusz Koncewicz, Dusting off the Old Precedent – Why the Commission Must Stick to the Art. 7 Procedure Against Poland, Verfassungsblog.
  11. Joelle Grogan, Suffering from Withdrawal – Controversy in the UK EU (Withdrawal) Bill, Verfassungsblog.
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Published on June 18, 2018
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Save the Date–I-CONnect Happy Hour at ICON-S 2018 in Hong Kong–Monday, June 25, 7pm to 9pm at Missy Ho’s in Kennedy Town

Richard Albert (Texas), Tom Ginsburg (Chicago), and David Landau (Florida State) invite friends of I-CONnect to our happy hour at the ICON-S 2018 Conference in Hong Kong.

All are welcome on Monday, June 25, from 7:00pm to 9:00pm at Missy Ho’s, located at Shop G9, G/F, Sincere Western House, 48 Forbes Street in Kennedy Town, one subway (MTR) stop away from Hong Kong University.

Attendees will benefit from the following beverage and food specials, thanks to the help of our colleague Rehan Abeyratne (CUHK). All prices below are in local Hong Kong currency (1 USD = 7.84600 HKD).

Beverages
$40 HKD bottled beer
$50 HKD draft beer and house wine
$50 HKD specialty cocktail (prepared by bartender)

Food
Edamame
Chicken karaage
Leek and pork gyoza dumplings
California roll

Food will be self-serve at the price of $120 HKD per person. Please bring cash if you wish to partake in these beverages and/or food.

The I-CONnect editors look forward to seeing you there!

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Published on June 16, 2018
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I·CON Volume 16, Issue 2: Editorial

J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law; Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional  Law

This issue of I.CON is special in at least three ways.

First, it coincides with the 5th Annual ICON-S Meeting, which is to take place in Hong Kong on June 25-27. I.CON and ICON-S are distinct entities, but share a common parentage and overlapping teloi. By all measures ICON-S, while still young but no longer an infant, has been a success story. We have invited the outgoing Presidents, Gráinne de Búrca and Ran Hirschl, to contribute here a brief State of the Society ahead of the Hong Kong Meeting. We take this occasion to thank them and all others who have contributed to the achievements of ICON-S and to welcome the incoming Presidents, Rosalind Dixon and Lorenzo Casini. We wish them a successful term of office.

This issue has Asia as its principal focus. In the past we have from time to time commissioned symposia on the “changing landscape” of constitutionalism in different countries or regions. More recently, as with the second issue of 2017 which focused on the Latin American world, we have moved to lending almost an entire issue of I.CON to such foci. It is a felicitous coincidence that the focus on Asia coincides with the ICON-S meeting in Hong Kong.

Finally, in this issue we introduce a new innovation to I.CON, the Annual Foreword.

“Since 1951 the editors of the Harvard Law Review have selected a prominent scholar of constitutional law to write a ‘Foreword’ to the Review‘s annual survey of the work of the Supreme Court. Within the community of scholars of constitutional law the ‘Forewords’ are widely taken to be good indications of the state of the field. The Foreword project defines a vision of the field of constitutional scholarship….”  Thus begins the article by Mark Tushnet (a member of our I.CON Editorial Board) and Timothy Lynch, who analyze the celebrated Harvard Law Review Forewords.[1] Although considered a foreword to the annual survey of the work of the Supreme Court, most HLR Forewords have had but a tenuous connection to the Supreme Court work in that given year and instead provide an occasion, as Tushnet and Lynch state, for a significant reflection on the field of constitutional scholarship. Indeed, there is hardly a better method of keeping in touch with the field than regularly reading the HLR Forewords. And yet we, the young and cheeky upstart I.CON, feel constrained to introduce one little caveat to this ongoing remarkable scholarly project. When Tushnet and Lynch speak of the field of constitutional scholarship they really mean American constitutional scholarship. And by this we do not refer primarily to the overwhelming majority of the authors of the HLR Forewords, but more importantly to the constitutional universe that this scholarship addresses. It is, we might add, tongue-in-cheek, a manifestation of American parochialism, whereby “The Championship Game” of America’s favorite pastime, baseball, involving teams from two North American countries, Canada and the United States, is called “The World Series.” For some, the northern landmass between the Atlantic and the Pacific is “The World.”

Starting with this issue of I.CON we will be publishing our annual Foreword, which has a very similar objective to that of our infinitely more senior and distinguished American sister journal, but with one tiny difference: namely, the conception of what constitutes the universe of constitutional scholarship. In one of the next issues we will publish an I.CON Afterword, which will include several reactions to the Foreword’s arguments. One Foreword and one Afterword will be published each year. Our hope is that with the passage of years the I.CON Forewords will be “taken to be good indications of the state of the field” thus differently defined. Wish us success!

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Published on June 14, 2018
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The Rights of Rivers and Forests and Apex Court Dynamics in Colombia: On Natural and Institutional Environments (I-CONnect Column)

Francisca Pou Giménez, ITAM, Mexico City

[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.]

Two weeks ago, James Fowkes’ column underlined how fast climate change has become a litigable issue, and how rapidly comparative inquiry on the matter has moved from asking whether courts would intervene in it to rather deal with “the hows, the whens and the what happened thens”[1] This reminded me of several Colombian high court rulings that would surely enter this universe of developments. The first one is the Constitutional Court ruling on the Atrato River, decided in November 2016.[2] The second one is a ruling on the Amazonian Rain Forest, issued by the Civil Cassation Chamber of the Supreme Court of Justice two months ago (in April, 2018) under the Rapporteurship of Judge Luis Armando Tolosa —known for having once granted a habeas corpus to protect an Andean spectacled bear.[3]

While these rulings have been registered as relevant events in this blog or elsewhere,[4] my impression is that they have been preliminarily seen as manifestations of an idea that often raises eyebrows: the idea of nature, or of components of nature like rivers and forests, being declared legal persons and fundamental rights-holders. The presence of this ingredient would precisely justify careful analysis of these rulings in the comparative scenario. Since the assignment of rights to Earth or to Nature is a distinctive characteristic of several Latin American contemporary constitutions —though not, directly, of the Colombian Constitution of 1991— these rulings would moreover indicate that the region has definitely entered a stage marked by the actual judicial enforcement of these rights.

Without denying that declaring rivers and forests to be legal subjects may, over time, prove consequential for the evolution of the law, I want to suggest that these rulings might contain less novelty than they seem. In the rulings, the “legal subject” or the “rights holder” element pertains to the remedy, not to the standing part of the case or to its legal foundation, and the work it actually does in the context of the argument seems modest —or at any rate not weighty enough to categorially single out these rulings amidst many others. What these rulings certainly suggest, however, is that something might have changed in the dynamics between Colombian apex courts, long seen as a “train crash” between a progressive, rights-protecting Constitutional Court and two backward-looking, transformation-resistant apex Courts —the Supreme Court of Justice and the Council of State. In a time when the platforms of the two candidates contending for the Presidency in the second round have included the amendment of the Constitution to partially reform the judicial branch, this tells us something about constitutional maturity that should not be lightly dismissed.

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Published on June 13, 2018
Author:          Filed under: Developments
 

ICON’s Current Issue (Table of Contents)

Volume 16 Issue 2

Table of Contents

Editorial

I.CON Foreword

Doreen Lustig and J.H.H. Weiler, Judicial review in the contemporary world—Retrospective and prospective

Focus on Asia 

Setting the scene

Johannes Chan, A storm of unprecedented ferocity: The shrinking space of the right to political participation, peaceful demonstration and judicial independence in Hong Kong

Articles

Tarunabh Khaitan, Directive principles and the expressive accommodation of ideological dissenters

Melissa Crouch, Dictators, democrats and constitutional dialogue: Myanmar’s Constitutional Tribunal

Michael Ramsden, Judging socio-economic rights in Hong Kong

 Symposium: Constitutional rights in South Asia 

Madhav Khosla and Jamal Greene, Constitutional rights in South Asia: Introduction

Raeesa Vakil, Constitutionalizing administrative law in the Indian Supreme Court: Natural justice and fundamental rights

Moeen H. Cheema, Two steps forward one step back: The non-linear expansion of judicial power in Pakistan

Mara Malagodi, Challenges and opportunities of gender equality litigation in Nepal

Deepa Das Acevedo, Gods’ homes, men’s courts, women’s rights

Critical review of jurisprudence

Jaclyn L. Neo, Definitional questions: A critique of the definition of religion and essential practice tests to allocate constitutional protection

Yoomin Won, The role of international human rights law in South Korean constitutional court practice: An empirical study of decisions from 1988 to 2015

The I·CONnect-Clough Center 2017 global review of constitutional law

Andrew James Harding, Jaclyn L. Neo, Dian A. H. Shah, Wilson Tay Tze Vern, Malaysia: The state of liberal democracy

Moeen Cheema, Pakistan: The state of liberal democracy

Khemthong Tonsakulrungruang, Thailand: The state of liberal democracy

Book reflection

Kevin Y.L. Tan, Spectres of comparison

Review essays

Fu Hualing and Zhai Xiaobo, What makes the Chinese Constitution socialist? Review of Qin Quanhong and Ye Haobo, Socialist Constitutionalism

Maria Adele Carrai, Confucianism reconstructed: The violence of history and the making of constitutionalism in East Asia. Review of Jiang Qing. A Confucian Constitutional Order: How China’s Ancient Past Can Shape Its Political Future (edited by Daniel A. Bell & Ruiping Fan); Son Ngoc Bui. Confucian Constitutionalism in East Asia

Yasuo Hasebe, The Supreme Court of Japan, One Step Forward (but only discreetly). Review of Katsumi Chiba, Iken-Shinsa: Sono Shôten no Sadame-kata (Constitutional Review: How to Focus on Issues); Tokiyasu Fujita, Saikôsai Kaisô-Roku (Memoirs of a Supreme Court Justice); Tokuji Izumi, Yasuyuki Watanabe, Hajime Yamamoto and Towa Ni’imura, Ippo Mae-e Deru Shihô: Izumi Tokuji Moto-Saikôsai-Hanji ni Kiku (The Judiciary, One Step Forward: Conversations with Former Justice Tokuji Izumi

Book reviews

Po Jen Yap, Courts and Democracies in Asia (Richard H. Pildes)

Scott Newton. The Constitutional Systems of the Independent Central Asian States: A Contextual Analysis (Mavluda Sattorova)

Mark Tushnet and Madhav Khosla, Unstable Constitutionalism – Law and Politics in South Asia (Po Jen Yap and Chintan Chandrachud)

Chaihark Hahm & Sung Ho Kim. Making We the People: Democratic Constitutional Founding in Postwar Japan and South Korea (Cheryl Saunders)

Jaclyn L. Neo (ed.). Constitutional Interpretation in Singapore: Theory and Practice (Mark Tushnet)

Jiunn-rong Yeh, The Constitution of Taiwan: A Contextual Analysis (Chien-Chih Lin)

Melissa Crouch, Law and Religion in Indonesia: Conflict and the courts in West Java (Dian A. H. Shah)

Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Aparna Chandra)

Piyabutr Saengkanokkul, รัฐธรรมนูญ ประวัติศาสตร์ข้อความคิด อำนาจสถาปนา และการเปลี่ยนผ่าน (Rattathammanoon-Prawatsart-Korkwamkid-amnaj-sathapana-lae-karn-plian-parnn) (Constitution: history, constituent power, and transition) (Khemthong Tonsakulrungruang)

Benjamin Schonthal, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Jaclyn L. Neo)

Shitong QiaoChinese Small Property: The Co-Evolution of Law and Social Norms (Weitseng Chen)

Tong Zhiwei, The Reform and Renewal of China’s Constitutional System (Zhongguo xianzhi zhi weixin中国宪制之维新) (Albert H.Y. Chen)

Eva Pils, Human Rights in China: A Social Practice in the Shadow of Authoritarianism (Kelley Loper)

 

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Published on June 12, 2018
Author:          Filed under: Editorials
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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 European Court of Justice held that the term spouse, within the context of the free movement directive, includes spouses of the same sex.
  2. The US Supreme Court ruled, with a 7 to 2 decision, in favor of a Colorado baker who refused to bake a cake for a same sex wedding due to religious reasons.
  3. The Constitutional Court of Moldova declared that the Law on the use of languages spoken on the territory of the Moldovan Soviet Socialist Republic has fallen into desuetude.
  4. The Constitutional Court of Moldova rejected the constitutional complaint filed by the President of the Republic of Moldova against the bans on broadcasting and distributing mass information from countries other than those of the EU, Canada and the US.
  5. The Federal Constitutional Court of Germany held that the mandatory publication of official information on food and feed law violation is constitutional.
  6. The UK Supreme Court found that Northern Ireland abortion law is in violation of the European Convention on Human Rights.
  7. The Supreme Court of Bermuda held that the Domestic Partnership Act, banning same-sex couples marriages, is unconstitutional.
  8. The Supreme Court of Canada rejected a Yukon man’s request to hear its case regarding an alleged fair trial violation.
  9. The European Court of Human rights ruled that Azerbaijan violated article 5 of the Convention for the arrest of four civil society activists.
  10. The Inter-American Court of Human Rights found that Colombia is to be held responsible for the murder of journalist Nelson Carvajal.

In the News

  1. The Ethiopian Parliament approved the government’s decision to end the six-month state of emergency.
  2. The President of Madagascar appointed Christian Ntsay as the new Prime Minister.
  3. A new government was sworn in by King Felipe VI, after the Spanish Parliament had voted a motion of no-confidence against Mariano Rajoy.
  4. The Italian government, led by Prime Minister Giuseppe Conte, won the confidence vote in both Houses of Parliament.
  5. The Parliament of Canada passed a motion aimed at the upholding of net neutrality protections.
  6. Ukraine Parliament voted for the creation of an Anti-Corruption Court, in accordance with the Venice Commission’s recommendations.
  7. The President of Egypt appointed the housing minister as the new Prime Minister.
  8. The Parliament of New South Wales passed legislation making it illegal to approach and intimidate staff and patients in the proximity of abortion clinics.
  9. The French Parliament is debating a draft legislation that aims at limiting the spread of fake news during the elections.
  10. The Iraqi Parliament approved the manual ballot recount.

New Scholarship

  1. Geoffrey Corn, Ken Watkin and Jamie Williamson (2018), The Law in War (providing a comprehensive, yet concise, guide to the norms regulating international and non-international armed conflicts)
  2. Neil Boister (2018), An Introduction to Transnational Criminal Law (dealing with the complex subject of transnational law, including cyber-crimes, environment protection and trafficking of cultural property)
  3. Jessie Hohmann and Marc Weller (eds.) (2018), The UN Declaration on the Rights of Indigenous Peoples (the first commentary to the UN Declaration adopted in 2007, providing a thorough analysis of all provisions and their background)
  4. Frank Haldemann and Thomas Unger (eds.) (2018), The United Nations Principles to Combat Impunity: A Commentary (offering a detailed analysis, principle by principle, of the UN set of principles to combat impunity, examining their genesis and their practical application)
  5. Kevin M. Barry and Jennifer Levi (2018), Blatt v. Cabela’s Retail, Inc. and a New Path for Transgender Rights (discussing the reasons why transgender litigants never invoked the protections of the American with Disabilities Act, setting the path for new ways to challenge discrimination)
  6. Bret Boyce (2018), Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective (observing the developments in constitutional jurisprudence on sexual morality in Canada, the US, India and Japan)
  7. David J. Bodenhamer (2018), The U.S. Constitution: A Very Short Introduction (providing a brief analysis of the US Constitution through a thematic approach)
  8. A. J. Coady, Ned Dobos and Sagar Sanyal (eds.) (2018), Challenges for Humanitarian Intervention (offering a multidisciplinary perspective on the practice of armed humanitarian intervention)

Call for Papers and Announcements

  1. The AAU Law Forum welcomes contributions for its next issue, regarding the Visegrád Group and government regulations encouraging startups and entrepreneurs. The deadline for submission is October 1, 2018.
  2. The German Yearbook of International Law welcomes papers for the next issue. Papers should be 10,000-12,500 words long (including footnotes). The deadline is September 1, 2018.
  3. LUISS Guido Carli University (Rome), together with the University College London, will host a seminar on “The Challenges of Reforming Upper Houses in the UK and Italy” on Monday, June 11. Registration is required by June 10, 2018.
  4. LUISS Guido Carli University (Rome), together with the University College London, will host a seminar on “Bicameralismo e processo legislativo nel Regno Unito e in Italia” on Tuesday, June 12. Registration is required by June 10, 2018.
  5. The University of Glasgow welcomes the submission of papers for the upcoming event “International law under pressure: navigating a shifting landscape”. Abstracts of no more than 300 words must be submitted by June 30, 2018.
  6. The Lauterpacht Centre for International Law at the University of Cambridge welcomes the submission of papers for the conference “On the Origins of International Legal Thought”. Abstracts of between 200 and 500 words should be submitted by July 31, 2018.
  7. The University of Padova calls for the submission of papers for the upcoming event “International Lawyers and Human Dignity”. Abstracts of no more than 600 words must be submitted by June 30, 2018.
  8. The University of Siena welcomes applications for its Summer School on Terrorism and Human Rights, June 20-31, 2018. The deadline for applications is June 15, 2018.
  9. The European Constitutional Law Review welcomes submissions for the 2018 EuConst Colloquium to be held in Amsterdam on October 5, 2018. Papers or abstracts must be submitted within July 1, 2018.

Elsewhere Online

  1. Bianca Gutan, The Taming of the Court – When Politics Overcome Law in the Romanian Constitutional Court, Verfassungsblog
  2. A. Dori, Hic Rhodus, hic salta: The ECJ Hearing of the Landmark “Celmer” Case, Verfassungsblog
  3. G. Romeo, It Was a Dark and Stormy Night: The Italian Institutional Crisis and Europe, UK Constitutional Law Association Blog
  4. David R. Cameron, New governments in Italy & Spain, but for how long?, Yale Macmillan Center
  5. M. Wilkinson, A Crisis Made in Italy, Verfassungsblog
  6. D. Rodriguez, Symposium: The Masterpiece ruling calls for increased vigilance of discrimination in the marketplace, ScotusBlog
  7. S. Peers, Love wins in the CJEU: Same Sex Marriages and EU free movement law, EU Law Analysis
  8. G. Piccirilli, Is the institutional crisis in Italy over? Surely a storm, maybe indicating a climate change, Blog of the IACL, AIDC
  9. D. Samararatne, Public Consultation in Constitution Making – The Sri Lankan Experiment, Blog of the IACL, AIDC
  10. N. Mekki, Local elections in Tunisia: Implementing the constitution and reinforcing transition, ConstitutionNet
  11. A. Duff, New Paradigms for the European Parliament, Verfasungsblog
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Published on June 11, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Chiara Graziani, PhD Student in Comparative Constitutional Law, University of Genoa (Italy)

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 European Court of Justice held that the notion of ‘right of access’ includes grandparents’ right to see their grandchildren.
  2. The European Court of Human Rights condemned Romania and Lithuania for complicity in the CIA extraordinary rendition program.
  3. The US Supreme Court rejected a challenge to Arkansas abortion law.
  4. The European Court of Human Rights condemned Turkey for breach of art. 8 ECHR by preventing parents from burying their children in the town of their choice.
  5. The Israeli High Court of Justice upheld an amendment to the Basic Law on the Knesset allowing 90 members of the legislative to expel one of their colleagues if they believe that he/she incites or support racism, armed struggle against the state, or terrorism.
  6. The European Court of Justice held that Belgian law prohibiting ritual slaughter of animals by Muslims–unless they are carried out in approved slaughterhouses–does not infringe freedom of religion.
  7. The US Supreme Court ruled that police searches over a motorcycle parked outside of a private property infringe the Fourth Amendment.
  8. The Supreme Court of Canada refused a man’s request to take back his guilty plea because he did not demonstrate how he would have behaved differently, had he known he could be deported.
  9. The European Court of Justice ruled that the EU Directive on unfair terms in consumer contracts may apply to educational establishments and that this has to be assessed by national courts of their own motion.
  10. The French Conseil Constitutionnel held that the offence of the French Criminal Code punishing public apology of terrorist acts is not unconstitutional.

In the News

  1. The designated President of the Council of Ministers in Italy, Giuseppe Conte, presented his list of ministers to the President of the Republic (for the second time) and the new government was sworn in on Friday, 1 June.
  2. Lord Reed was appointed Deputy President of the UK Supreme Court.
  3. The Republic of Ireland voted in a popular referendum in favor of overturning the abortion ban.
  4. The EU General Data Protection regulation has been applicable since 25 May.
  5. A second round of elections will be held in Colombia on 17 June.
  6. Georgia accused Russia of war crimes in closing evidence before the European Court of Human Rights.
  7. An Israel national airline sued Israel alleging aerial discrimination.
  8. The Hungarian Government submitted a bill to the Parliament imposing criminal sanctions to groups supporting or financing illegal immigration.
  9. Lybia agreed to elections in December under the auspices of the UN, in order to end the situation of conflict in the country.
  10. A special criminal court will start investigating on alleged war crimes and crimes against humanity committed in the Central African Republic.

New Scholarship

  1. Martin Belov (2018), Global Constitutionalism and its Challenges to Westphalian Constitutional Law (discussing how, since the end of the 20th century, global constitutionalism has challenged and transformed the Westphalian constitutional tradition)
  2. David Bilchitz & David Landau (eds.), The Evolution of the Separation of Powers. Between the Global North and the Global South (2018) (discussing how the doctrine of the separation of powers has changed due to shifts in constitutional practice)
  3. Donal K. Coffey (2018), Constitutionalism in Ireland, 1932-1938. National, Commonwealth, and International Perspectives (considering a series of key issues in Irish constitutionalism in 1930s, a turbulent decade for the United Kingdom, the Commonwealth and Europe)
  4. Katarzyna Granat (2018), The Principle of Subsidiarity and its Enforcement in the EU Legal Order (analyzing and evaluating the EU mechanism of subsidiarity represented by the Early Warning System and the role that national parliaments have played within it)
  5. Elspeth Guild, Didier Bigo & Mark Gibney (eds.), Extraordinary Renditions. Addressing the Challenges of Accountability (2018) (examining the US-led program of extraordinary renditions and the investigations carried out by authorities in quest for accountability and re-establishment of the rule of law)
  6. Tomasz Tadeusz Koncewicz (2018), On the Strategic Reading of the Constitutional Document. Mapping out Frontiers of New Constitutional Research (analyzing the erosion of rule of law principles in different contexts and examining the role of institutions to protect democracies)
  7. Darrel R. Ross (2018), Civil Liability in Criminal Justice (providing information and recommendation on how criminal justice practitioners in the US should behave in order to perform their duties within the limits of justice)
  8. Tom Ruys, Olivier Corten & Alexandra Hofer (eds.), The Use of Force in International Law (describing cases in which states resorted to the use of force and discussing methodological approaches to the matter)
  9. Paul F. Scott (2018), The National Security Constitution (analyzing how different approaches to the protection of national security have affected the constitutional order of the United Kingdom)
  10. Alan Wehbé (2018), The Free Press and National Security: Renewing the Case for a Federal Shield Law (arguing in favor of a federal reporter’s shield law in matters of national security)

Call for Papers and Announcements

  1. The Administrative and Regulatory Law News accepts submissions for the summer issue. The deadline to submit pieces is June 8, 2018.
  2. The Faculty of Law of the University of Graz welcomes proposals of papers for the Citizenship Conference 2018, to be held in Graz on November 20-21, 2018. The deadline to send abstracts is July 1, 2018.
  3. The Department of national and supranational public law of the University of Milan is hiring a one-year Post-Doc Fellow for the project ‘The principle of economic conditionality in comparative perspective’. The deadline for application is July 11, 2018, with interview on July 17, 2018 and start on August 1, 2018. For information, contact Antonia Baraggia: antonia.baraggia@unimi.it.
  4. The Verfassung und Recht in Übersees/Law and Politics in Africa, Asia and Latin America welcomes submissions for the special issue ‘Between Centralized Federalism and Regionalized Centralism: Varieties of Territorial Organizaton in Latin America’. The deadline for sending abstracts and CVs is August 1, 2018.
  5. Maastricht University accepts nominations for the Theo van Boven – Maastricht Human Rights Research Prize 2018. Nominations must be received by September 15, 2018.
  6. The T.M.C. Asser Instituut (The Hague) invites submissions for the 2018 Yearbook of International Humanitarian Law. The deadline for submissions of articles is October 1, 2018.
  7. Oxford University Press welcomes book proposals for its new Series in Comparative Constitutionalism.

Elsewhere Online

  1. Nicola McEwen, Crisis, headache, or sideshow: how should the UK government respond to the Scottish parliament’s decision to withhold consent for the Withdrawal Bill?, The Constitution Unit
  2. Coree Brown-Swan, A New Vision of Independence?, Blog of the Centre of Constitutional Change
  3. Lorna Woods, Revision of Audiovisual Media Services Directive – Video-sharing Platforms, EU Law Analysis
  4. Erika Rackley & Rosemary Hunter, Judicial Leadership, Lady Hale and the UK Supreme Court, UK Constitutional Law Association Blog
  5. Jaclyn L. Neo, Malaysia’s Democratic Hope: Proposals for Constitutional Reform, Constitutionnet
  6. Amy Howe, Justices Stay Out of Arkansas Abortion Case, Scotusblog
  7. Orla Lynskey, Why has the new GDPR legislation been introduced?, LSE Thinks
  8. Iddo Porat, The Problem with Iceland’s proposed ban on circumcision, Blog of the IACL, AIDC
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Published on June 4, 2018
Author:          Filed under: Developments