magnify

I·CONnect

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

What’s New in Comparative Public Law

–Margaret Lan Xiao, SJD Candidate, Case Western Reserve University

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

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

Developments in Constitutional Courts

  1. The Somaliland Constitutional Court settled the presidential and parliamentary elections deadline.
  2. The Czech Constitutional Court rejected a complaint filed by a Romany man who demanded compensation for being sent to a special school in the 1980s.
  3. South Korea’s Supreme Court upheld as constitutional an individual’s prison sentence for violating the Military Service Act by refusing to enlist.
  4. Sixteen out of the 22 candidacies filed for the October presidential election in Burkina Faso have been endorsed by the country’s Constitutional Council.
  5. The U.S. Court of Appeals for the D.C. Circuit ruled that an activist lacks standing in his lawsuit against the government over the legality of the National Security Agency’s meta-data collection.

New Scholarship

  1. Jeremy D. Bailey, James Madison and Constitutional Imperfection, Cambridge University Press, September 2015 (presenting an account of James Madison’s political thought by focusing on Madison’s lifelong encounter with the enduring problem of constitutional imperfection)
  2. Michael C. Davis, The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong, Hastings International and Comparative Law Review, Vol. 38, No. 2, 2015 (exploring Hong Kong perspectives on recent developments such asthe Umbrella Movement, the June 2015 PRC State Council White Paper, and the August 2015 decision by the Standing Committee of the National People’s Congress on electoral reform in Hong Kong)
  3. Stephen Gardbaum, Revolutionary Constitutionalism, UCLA School of Law Research Paper No. 15-26 (defining the notion of revolutionary constitutionalism as using the constitution-making process to attempt to institutionalize and bring to a successful conclusion a political revolution and offering reflections on revolutionary constitutionalism)
  4. Tom Hickey, The Republican Virtues of the “New Commonwealth Model of Constitutionalism”, International Journal of Constitutional Law (Forthcoming)(arguing in favor of the “new commonwealth model of constitutionalism” practiced in Canada, the UK and elsewhere)
  5. Tori L. Kirkebo, Closing the Gap. A Human Rights Approach to Regulating Corporations, PluriCourts Research Paper No. 15-06 (examining the current system regulating state and corporate behavior with respect to human rights and taking a threefold approach to analyze how one can best regulate corporations to secure an increased protection of rights)
  6. Dimitry Kochenov, EU Law without the Rule of Law: Is the Veneration of Autonomy Worth It?, 34 YEL 2015 (Forthcoming) (concluding that the EU is not driven by the Rule of Law as an institutional ideal, but rather that the EU deploys the Rule of Law to shield itself from potential internal and external contestation)

In the News

  1. Singapore’s president dissolved the parliament on the advice of the prime minister.
  2. Iran’s president publiclyopposed a parliamentary vote on the landmark nuclear deal reached with world powers.
  3. Myanmar’s parliament was suspended ahead of the first nationwide poll in 25 years to be contested by opposition leader.
  4. Kenya’s national assembly has rejected a proposal by the finance ministry to increase the minimum core capital for banks.
  5. China’s top legislature adopted a prisoner amnesty deal as well as several law amendments.
  6. The final version of the new Nepal draft constitution, featuring a seven-province federal model, was tabledbefore the Constituent Assembly.
  7. Following the parliament’s approval of a reform plan aimed at eliminating government corruption, Iraqi President Fuad Masum released a statement endorsing constitutional amendments.

Calls for Papers and Announcements

  1. The New Zealand Centre for Public Law at Victoria University of Wellington, Faculty Law, Boston College Law School, and The International Society of Public Law (ICON·S) invite submissions for a two-day symposium on quasi-constitutionality and constitutional statutes, to be held on the Pipitea campus of Victoria University of Wellington, Faculty of Law (Old Government Buildings) on Thursday & Friday, May 19-20, 2016.
  2. Kabarak University School of Law, Boston College Law School and the International Society of Public Law invite submissions for a two-day Symposium on Constitutional Change and Transformation in Africa, to be held on the campus of Kabarak University in Nakuru on Thursday and Friday, June 9-10, 2016.
  3. The Future of Privacy Forum has issued a call for papers for presentation at a conference on “Designing Ethical Review Processes for Big Data Research” to take place on December 10, 2015.
  4. Northeastern University School of Law Legal Scholarship 4.0 has issued a call for papers for its second annual Legal Scholarship 4.0 conference on “Tackling the Urban Core Puzzle” to be held on October 29 – 31, 2015.
  5. The Legal Writing Institute has issued a call for papers for the workshop of “Tried and True: Sharing what Works for you in Your Legal Writing Course” to be held on December 4, 2015 at Washington University in St. Louis.
  6. The International Journal of Legal Research and Governance has issued a call for papers for its upcoming issue.

Elsewhere on the Internet

  1. Derek O’Brien, Magna Carta, the Right to Trial by Jury and the ‘King of Sleaze’, UK Constitutional Law Association Blog
  2. Dan Priel, Strategizing in the Shadow of Precedent: Another  Look at Henry v. British Columbia, TheCourt.ca
  3. Humphrey Sipalla, To achieve transformation, Kenyan law needs to shun a hierarchy of sources, AfricLaw
  4. Eugene Volokh, Appeals court upholds ban on demonstrations on the Supreme Court plaza, The Washington Post
  5. Sasha Volokh, Federal common law: it’s actually everywhere!, The Washington Post

 

Print Friendly
Published on August 31, 2015
Author:          Filed under: Developments
 

Why Impeachment? Brazilian Democracy Revisited

Juliano Zaiden Benvindo, University of Brasilia, Brazil

Impeachment has become a common word these days. Recently, examples of impeachment proceedings appeared in Madagascar,[1] Thailand,[2] Indonesia,[3] Myanmar,[4] Philippines,[5] and Paraguay.[6] In Latin America, the 1990s and 2000s were clearly marked by an “unprecedented wave of impeachments” proceedings,[7] including in Brazil (1992), Venezuela (1993), Colombia (1996), Paraguay (1999 and 2003), Peru (2000), and Ecuador (2004).[8] Even the United States was faced with an impeachment proceeding in 1998 with Bill Clinton’s sexual scandal and the resulting charges of perjury and obstruction of justice.[9] Generally explained as a legitimate mechanism of constitutional democracies applicable in extreme cases,[10] some of these recent examples show that it has also been used in much less drastic circumstances and served as an instrument for political pressure and bargaining. Brazil, which in 1992 had its President Fernando Collor de Mello impeached[11] after a wave of protests and a corruption scandal, has again had its democracy challenged by people on the streets demanding the impeachment of the recently-reelected President Dilma Roussef. While the protestors have been vocal and mass protests have become routine since her reelection last October (including on March 15th, April 12th, and August 16th of this year), their claim seems unreasonable. So, what’s going in Brazil?

First of all, we have to examine this wave of protests in the context of a country whose democracy has strengthened since the promulgation of the Constitution of 1988. Brazil has changed and an increasing curve of democratic learning and constitutional living has brought about concrete social and institutional benefits. An inflection point in Brazilian history was its very process of constitution-making, when the Constituent Assembly had to deal, as never before in Brazilian history, with organized civil society directly intervening in its legislative activities.[12] Notwithstanding some interpreters arguing that the Constituent Assembly was characterized by political arrangements that “impeded the institutional development necessary for a consolidated democracy,”[13] history has proven the contrary. Without denying the perverse effects of many of those political bargains, something unprecedented also happened. Since the 1970s, many social groups from distinct social and economic strata created an environment where inclusive institutions could start to take shape,[14] and, in the 1980s and especially during the Constituent Assembly of 1987-1988, this movement directly impacted the framing of the Constitution. A culture of popular involvement gained momentum, building up the conditions for bolstering the “performative meaning”[15] of Brazilian constitutionalism in subsequent years.

Read the rest of this entry…

Print Friendly
Published on August 28, 2015
Author:          Filed under: Analysis
 

Article Review: David Bilchitz on Matthias Klatt’s “Positive Rights: Who Decides? Judicial Review in Balance”

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, David Bilchitz reviews Matthias Klatt‘s article on Positive Rights: Who Decides? Judicial Review in Balance, which appears in the current issue of I•CON. The full article is available for free here.]

David Bilchitz, University of Johannesburg

In most constitutions today, fundamental rights play a central role and they are understood increasingly to place substantial positive obligations upon the state. Much scholarship has engaged the question of whether judges should adjudicate on these positive obligations and the extent of deference they should show to other branches. The debate has raged particularly fiercely around the role of the judiciary in cases concerning socio-economic rights (I have engaged with the justification for judicial intervention in that arena in chapter four of my book ‘Poverty and Fundamental Rights: the Justification and Enforcement of Socio-Economic Rights’).

Matthias Klatt in a fascinating article recently published in ICON (‘Positive Rights: Who Decides? Judicial Review in Balance’) argues that judicial interventions in relation to fundamental rights admit of different levels and intensities of control.  Utilising Katie Young’s typology (in her book ‘Constituting Economic and Social Rights’), he classifies courts as being either more detached, engaged or supremacist.  The characterization of a court corresponds to the degree of deference courts display towards other branches. The question Klatt poses is the normative one of how to determine which of these three approaches is to be applied (in this respect, his project is similar to that of Jeff King in his book ‘Judging Social Rights’). He contends that the choice between these differing intensities of review should not be made for any legal system in the abstract, once and for all. Instead, ‘the correct intensity of control must be chosen in each particular case, depending on the factual and normative circumstances’ (p. 363). In order to do so, he constructs the problem of judicial review as a conflict of competences between the legislature’s competence to decide on positive rights’ matters and the constitutional court’s competence to control these decisions.

Klatt then proceeds to apply balancing reasoning (following the model of Robert Alexy in ‘A  Theory of Constitutional Rights’) to this clash. He argues that competences should be understood as principles which should be understood to be optimization requirements: the subject-matter of the principle must be realized to the greatest extent possible.  Clashes of principles, on this view, are to be resolved by a balancing procedure which involves three stages: first, one must establish the degree of non-satisfaction of the first competence; secondly, one must engage with the importance of satisfying the competing competence; and finally, it must be established whether the importance of satisfying the latter competence justifies the non-satisfaction of the former. Klatt recognizes the need to provide weights to each of the reasons offered at these three stages. He outlines five factors which will determine these weights: the quality of the primary decision; the epistemic reliability of the premises used for a decision; the democratic legitimacy of a decision; the significance of the material principles at stake; and the specific function fulfilled by the relevant competence ‘in a system of appropriate division of labour between courts and legislatures’ (p. 372).

Klatt’s approach is novel, deserves sustained scholarly attention and I can only begin that process within the constraints of a blog by raising some questions about it. He attempts to apply an Alexian approach of balancing to address the question of when the judiciary should intervene in matters relating to fundamental rights. Is this an appropriate approach? I have several worries.

Read the rest of this entry…

Print Friendly
Published on August 26, 2015
Author:          Filed under: Reviews
 

What’s New in Comparative Public Law

Angelique Devaux, French Licensed Attorney (Notaire)

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Turkey ruled that postponing a strike is a violation of the right the strike.
  2. Costa Rica’s Constitutional court ruled that a child born in the U.S. who lost his birth certificate may be granted Costa Rican nationality based on DNA test.
  3. The Russian Constitutional Court ruled that Russian law supersedes international treaties and conventions.
  4. The Constitutional Court of Turkey published a decision regarding essential elements of court decisions.

New Scholarship

  1. Richard Albert, The Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada, Queen’s Law Journal (forthcoming 2016) (tracing the origin of the theory and doctrine of unconstitutional constitutional amendment, and suggesting a framework for evaluating the constitutionality of constitutional amendments in Canada)
  2. Paul Daly, A Supreme Court’s Place in the Constitutional Order – Contrasting Recent Experiences in Canada and the United Kingdom, Queens’ Law Journal, forthcoming (comparing the position of the Supreme Court of Canada and the Supreme Court of the United Kingdom in their respective constitutional orders)
  3. Joshua C. Gellers and Christopher Jeffords, Procedural Environmental Rights and Environmental Justice: Assessing the Impact of Environmental Constitutionalism (finding that the right
    to information in environmental matters is associated with improved
    access to clean water and sanitation)
  4. Gail J. Hupper, Educational Ambivalence: The Rise of a Foreign-Student Doctorate in Law, 49 New England Law Review 319 (2015) (examining the evolution of the foreign-student doctorate in law in the U.S.)
  5. Tariq Modood, Multiculturalism and Moderate Secularism, Robert Schuman Centre for Advanced Studies Research Paper (discussing three multiculturalist approaches and moderate secularism)
  6. Angela Huyue Zhang, The Faceless Court (examining the behavior of judges and their law clerks at the Court of Justice of the European Union)

In the News

  1. In Canada, civil rights groups challenged changes to the Citizenship Act.
  2. The European Regulation on Successions has entered into force as of August 17, 2015.
  3. Illinois banned gay conversion therapy for minors.
  4. The U.S. Justice of Department decided that gay couples are eligible for Social Security Benefits.
  5. The Tennessee Supreme Court is considering changing rules about media access to court room.

Calls for Papers and Announcements

  1. The Indian Journal of Constitutional Law invites submission for its 2016 issue.
  2. The Research Unit in Law of the University of Luxembourg has issued a call for papers for junior scholars for a roundtable at a conference to be held on 12-13 November 2015 on the settlement of tax disputes under international law.
  3. The Lisbon Centre for Research in Public Law has issued a call for papers for its “II Lisbon International Workshop on Global Administrative Law: Unity and Diversity of Global Administrative Regimes”, which will take place on December 4th at the University of Lisbon School of Law.
  4. The International Journal on Consumer Law and Practice welcomes submissions for its Volume IV to be launched in 2016.
  5. The Law & Economics Center is considering applications for three new LEC Workshops for Law Professors.
  6. The Central States Law Schools Association 2015 invites submissions of proposals for its conference to be held on October 9-10, 2015 at The University of Toledo College of Law.

Elsewhere on the Internet

  1. Humphrey Sipalla, To achieve transformation, Kenyan law needs to shun a hierarchy of sources, AfricLaw.com
  2. Term limits and the Supreme Court: Is it bad to have a bunch of old judges? The Economist
  3. Amaury A. Reyes-Torres, Olairi v. Italy: The First Step to Equal Marriage in Europe?org
  4. Sasha Volokh, Judicial Non-Delegation, Part 3, The Washington Post
  5. Steven D. Schwinn, Missouri Court Upholds Ban on Felon Gun Possession, Constitutional Law Prof Blog
  6. Shawn Marie Boyne, German Prisons and Human Dignity, Comparative Law Prof Blog
Print Friendly
Published on August 24, 2015
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Mohamed Abdelaal, Alexandria University (Egypt)

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Uganda banned the practice of refunding the bride price when the marriage ends in divorce.
  2. In Ukraine, fur Justices of the Constitutional Court issued separate opinions on the amendments to the Constitution regarding decentralization.
  3. The French Constitutional Council rejected symbolic criminal measures.
  4. A federal judge in New York ruled that the state’s banking law is unconstitutional.
  5. The Connecticut Supreme Court found the state’s death penalty unconstitutional.
  6. The Massachusetts Supreme Court upheld the constitutionality of anti-human trafficking law.

In the News

  1. The Iraqi Parliament approved the Government’s Reform Plan.
  2. The Thai Parliament issued a controversial law that curbs public assembly.
  3. In Uganda, the Parliament approved the Constitution amendment bill.
  4. The Somali Parliament passed an impeachment resolution against the President.
  5. In California, a legislative bill was signed into law prohibiting grand juries from ruling on police brutality cases.

New Scholarship

  1. Nicholas W. Barber, Why Entrench?, 14 Int’l J of Const Law (forthcoming 2016) (discussing different forms and purposes of entrenchment clauses)
  2. Barry R. Weingast, Capitalism, Democracy, and Countermajoritarian Institutions, (discussing constitutionalism, countermajoritarianism, and stability as conflicting values of democracy)
  3. Paul J. Larkin Jr., The Lost Due Process Doctrines, Working Paper (examining procedural requirements and substantive limitations of the Due Process Clause, and the significance of the Magna Carta on the Clause.)
  4. Rivka Weill, Juxtaposing Israel and Canada: On the Interplay between Commonlaw Override and Sunset Override, Working Paper (exploring the role of the override power in the Israel’s constitution-making process.)
  5. Clark B. Lombardi, Constitutions of Arab Countries in Transition: Constitutional Review and Separation of Powers, IE Med Mediterranean Yearbook (Barcelona: European Institute of the Mediterranean, 2014) (examining the role of constitutional courts in the Arab Mediterranean in boosting principles of democracy and judicial review after the Arab Spring.)
  6. Malcolm Langford, Why Judicial Review?, 2(1) Oslo L. Rev. (2015) (examining the comparative advantage of judicial interpretation and the functionalist reasons of judicial review.)

Call for Papers

  1. The Revista Tribuna Internacional law journal invites submission for Volume 4, Issue 8 (December 2015).
  2. Kabarak University School of Law, Boston College Law School and the International Society of Public Law invite submissions for a two-day Symposium on Constitutional Change and Transformation in Africa, to be held on the campus of Kabarak University in Nakuru on June 9-10, 2016.
  3. A call for papers has been issued for a conference on Constitutional History: Comparative Perspectives, to be held in the University of Illinois College of Law on April 12-13, 2016.
  4. The New Zealand Centre for Public Law at Victoria University of Wellington, Faculty Law, Boston College Law School, and The International Society of Public Law (ICON·S) welcome submissions for a symposium on quasi-constitutionality and constitutional statutes, to be held in Victoria University of Wellington, Faculty of Law (Old Government Buildings) on Thursday & Friday, May 19-20, 2016. Abstracts are due by Oct. 1, 2015.
  5. The Indian Journal of Law and Public Policy invites articles, short articles, and case commentaries for Volume 2, Issue 1.

Elsewhere on the Internet

  1. Shawn Marie Boyne, German Prisons and Human Dignity, Comparative Law Blog
  2. Nancy Marcus, “Religious Freedom” as a Shield and a Sword: Tensions Between Conflicting Rights, Jurist
  3. Gerard Magliocca, Griswold and Abortion, Concurring Opinion
  4. Diego Antonino Cimino, Italy towards institutional re-design: a constitutional and political marathon, ConstitutionNet
  5. Ben DiPietro, Employee Overtime Cases Could Wind Up Before Supreme Court, WSJ Law Blog
Print Friendly
Published on August 17, 2015
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

Patrick Yingling, Reed Smith LLP

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Uganda ruled that the refund of a bride price by the woman’s parents or relatives upon a failed marriage is unconstitutional, but the practice of paying a bride price is to continue.
  2. France’s Constitutional Council upheld a law banning the construction of new cockfighting arenas.
  3. A Pennsylvania judge issued a first-of-its-kind ruling, recognizing the common law marriage of a same-sex couple through a retroactive application court decisions striking down bans on same-sex marriage.
  4. The U.S. Court of Appeals for the Fifth Circuit ruled that a Texas voter identification law discriminated against minorities and violated Section 2 of the Voting Rights Act of 1965.
  5. The Supreme Court of Pakistan rejected all applications challenging the 18th and 21st Constitutional amendments, ruling in favor of the establishment of military courts in the country.

In the News

  1. The Indian government ordered internet service providers to allow access to the 857 previously banned pornography and humor websites, provided they did not include child pornography.
  2. Kenya’s Constitution Implementation Commission (CIC) chair Charles Nyachae has accused the office of the Attorney General of delaying preparation of Constitutional Bills on the two-thirds gender rule ahead of the August 27th deadline.
  3. Zambia’s Justice Minister, Dr. Ngosa Simbyakula, deferred Constitution Amendment Bill No. 6 of 2015—which seeks to increase the number of parliamentary constituencies—after realizing that the ruling party did not have the required two-thirds majority in the House to pass the law.
  4. In the second round of talks to forge a coalition government in Turkey, the ruling and main opposition parties have agreed to draw up a new constitution, although differences of opinion on the content of the constitution persist.
  5. Radio Free Europe/Radio Liberty contributor Khadija Ismayilova went on trial in Baku, Azerbaijan on charges of tax evasion, abuse of power, and embezzlement, which she claims is politically motivated punishment for her work exposing government corruption.

New Scholarship

  1. Martin Redish & Matthew Heins, Premodern Constitutionalism, Northwestern Law & Econ Research Paper No. 15-13, Northwestern Public Law Research Paper No. 15-41 (2015) (asserting that the core of American constitutionalism has a tripartite theoretical foundation: the principle of skeptical optimism; the political apparatus of countermajoritarian constraint of majoritarian power structures; and the two key structural elements necessary to activate the political apparatus—an entrenched written constitution subject to formal alteration only by supermajoritarian process and a prophylactically insulated judiciary empowered to interpret it)
  2. Bradley Silverman, The Legitimacy of Comparative Constitutional Law: A Modal Evaluation, 2015 (evaluating the legitimacy of the practice of comparative constitutional law by American courts through modal lenses)
  3. Bilyana Petkova, The Safeguards of Privacy Federalism, NYU Jean Monnet Working Paper, 2015 (arguing from a comparative perspective that there is a need to optimize the advantages of federalism to achieve a degree of privacy consolidation on the federal level)
  4. Angela Huyue Zhang, The Faceless Court, 2015 (examining EU competition law by focusing on the behavior of judges and their law clerks at the Court of Justice of the European Union against the unique institutional settings in Europe)
  5. The European Journal of Legal Studies, Vol. 8, Issue 1 (Summer 2015) (featuring the scholarship of Jan Zglinski, Joseph Damamme, Michèle Finck, Urška Šadl, Maciej K. Borowicz, Iris H Chiu, Jaime Rodriguez Medal, and Emma Nyhan)

Calls for Papers and Announcements

  1. The Society of Legal Scholars invites applications from members for the editorship of its prestigious journal, Legal Studies.
  2. Kabarak University School of Law, Boston College Law School, and the International Society of Public Law invite submissions for a two-day Symposium on Constitutional Change and Transformation in Africa, to be held on the campus of Kabarak University in Nakuru, Kenya on June 9-10, 2016.
  3. The New Zealand Centre for Public Law at Victoria University of Wellington, Faculty Law, Boston College Law School, and The International Society of Public Law (ICON·S) invite submissions for a two-day symposium on quasi-constitutionality and constitutional statutes, to be held on the Pipitea campus of Victoria University of Wellington, Faculty of Law (Old Government Buildings) on Thursday & Friday, May 19-20, 2016.
  4. The Graduate School of Government and European Studies and the European Faculty of Law have issued a call for papers for the 2015 Legal Theory and Legal Philosophy Conference to be held on November 20-21, 2015 in Ljubljana, Slovenia.
  5. Organizers of the International Legal Ethics Conference VII have issued a call for papers and programs for the conference to be held on July 14-16, 2016 at Fordham Law School.
  6. The Comparative and International Education Society (CIES) has issued a call for papers for its 60th Annual Conference—Six Decades of Comparative and International Education: Taking Stock and Looking Forward—to be held at the Sheraton Wall Centre Vancouver Hotel, in Vancouver, Canada on March 6-10, 2016.

Elsewhere Online

  1. Ken Opalo, Term Limits and Democratic Consolidation in Sub-Saharan Africa: Lessons from Burundi, ConstitutionNet
  2. Manoj Mate, A Challenge to Judicial Independence in India: The National Judicial Appointments Council (NJAC), JURIST – Academic Commentary
  3. Shawn Marie Boyne, Snowden: Patriot, Whistleblower, or Spy? (Part I), Comparative Law Prof Blog
  4. Phillip Bump, Could Joe Biden pick Barack Obama as his running mate? Yes. But., The Washington Post
  5. Anneke Meerkotter & Graeme Reid, Africa Rulings Move LGBT Rights Forward, JURIST – Professional Commentary
Print Friendly
Published on August 10, 2015
Author:          Filed under: Developments
 

Mapping Constitutional Success: A New Study on Process

Lorianne Updike Toler, Libertas Constitutional Consulting

Amidst the chaos of Libya’s civil war, the Constitution Drafting Assembly (CDA) remains the lone institution recognized as legitimate by both sides of the conflict.  Headed by the stubbornly thoughtful—and stubbornly neutral—Waleed Al-Tahourni, the CDA’s eight committees are feverishly attempting to maintain what little legitimacy remains in the country by producing a coherent draft come October when one of their deadlines expires.

The legitimacy the group has fostered in an otherwise failed state may have been aided by their unprecedented access to comparative examples of other constitutional processes provided them a little over a year ago.

Conceived by Huda Abuzed of Rashad Consulting of Tripoli and commissioned by UNDP, Libertas Constitutional Consulting (which I head) reviewed eighteen different historical and contemporary constitutional processes and identified the presence, duration, and quality of 35 discrete aspects of a constitution-writing process.  A country study was produced for each process under review, and the entirety of the information was distilled into a large, user-friendly excel spreadsheet.  This comparison chart was then translated into Arabic and shared by the United Nations Support Mission in Libya as one of three critical documents on USB drives with CDA members on June 4, 2014.

The comparison chart can be found here.  Believing lessons learned from the study transcended Libya’s immediate circumstances and could be helpful to practitioners elsewhere, a write-up of best and worst practices in constitution-writing emanating from the study was published in volume 3, issue 4 of the Cambridge Journal of International and Comparative Law, “Mapping the Constitutional Process,” found here.

Read the rest of this entry…

Print Friendly
Published on August 7, 2015
Author:          Filed under: Analysis
 

The Metastasis of “National Security” in China

–Alvin Y.H. Cheung, Progressive Lawyers’ Group, Hong Kong

As Dwight D. Eisenhower observed as early as 1961, national security is big business–and, if left to its own devices, will accumulate political power, with potentially disastrous consequences.  Recent events in China have yet again confirmed Eisenhower’s insights.  The mass arrests and disappearances of Mainland lawyers, official threats to investigate “malicious short-selling of stocks and stock indices” in connection with stock market turbulence in Shanghai and Shenzhen, and a crackdown on religious organizations–including in respect of their activities in Hong Kong–all bear the hallmarks of an all-encompassing definition of national security.  This conception, if left unchallenged, will have dire ramifications domestically and abroad.

Read the rest of this entry…

Print Friendly
Published on August 6, 2015
Author:          Filed under: Analysis
 

The Scholars Who Bring You “What’s New in Comparative Public Law”

Richard Albert, Boston College Law School

Since last year, in January 2014, I-CONnect has published a weekly roundup of news in the world of comparative public law.

“What’s New in Comparative Public Law” is a curated reading list of developments in public law. The weekly roundup includes a selection of links to news, high court decisions, new or recent scholarly books and articles, calls for papers, and blog posts. This new feature has become a must-read for scholars interested in comparative public law.

The weekly roundup is brought to you by six scholars who rotate its production on a weekly basis. Below, I introduce each of them to you.

Mohamed Abdelaal is an Assistant Lecturer of constitutional and administrative law at Alexandria University in Egypt. His scholarly interests are constitutionalism, Islamic law, and jurisprudence. He is a permanent member of the Egyptian American Rule of Law Association and has twice served as an Egyptian expert in drafting the Rule of Law Index Report sponsored by the World Justice Project. He holds degrees from Alexandria University (LL.B.) and Indiana University McKinney School of Law (LL.M., J.S.D.).

Rohan Alva practices law in New Delhi. Prior to that, he was Assistant Professor at Jindal Global Law School. His interests lie in public law and civil procedure. He was recently featured in I-CONnect’s video interview series for a discussion on developments in Indian Constitutional Law. The video is available here.

Angélique Devaux is a French Qualified Attorney (Diplômée Notaire). She began her career in the UK where she assisted British clients in estate planning and acquiring property in France. Then she worked as an associate in a large firm of notaires for six years in Paris specializing in family law with cross-border issues, before moving to the U.S. She is also an LL.M. American law graduate at Indiana University Robert McKinney School of Law where she co-taught comparative law and has been giving lectures in French and European Law. She has authored several articles in comparative law, and essentially focuses her research on Family Law, International Private Law (Conflict of Laws) and Comparative Law.

Margaret Lan Xiao is originally from China, where she earned a bachelor’s degree from Sun Yat-sen University and a master’s degree from Fudan University. She was formerly a Visiting Scholar at the East Asian Legal Studies Center at the University of Wisconsin-Madison, and a LL.M. student at Washington University in St. Louis. Her research concerns constitutionalism in modern China, the separation of powers, and the organization and function of China’s administrative law system. She has translated the scholarship of several leading American scholars for reference and study in China. She is currently a doctoral candidate in comparative constitutional law.

Sandeep Suresh graduated with B.P.Sc (Hons.), LL.B (Hons.) from National Law University, Jodhpur (India) in May, 2015. He is currently a Research Associate at the Centre for Law and Policy Research, Bangalore (India). His responsibilities include conducting policy-oriented legal research in the area of public law and assisting senior lawyers in constitutional litigation before the High Court of Karnataka (India). Additionally, he is an Empanelled Mediator at the Indian Institute of Arbitration and Mediation. His areas of research interest are mainly constitutional law, international arbitration and the judicial process. He is also dedicated to bringing reforms in India’s legal education industry.

M. Patrick Yingling is a comparative law scholar and an appellate practitioner. Since 2013, he has practiced as an attorney in Reed Smith LLP’s Appellate Practice Group. From 2012 to 2013, Patrick clerked for the Honorable D. Michael Fisher on the U.S. Court of Appeals for the Third Circuit. In 2011, he taught as a visiting lecturer at Moi University School of Law in Kenya. Patrick’s scholarship focuses on institutional corruption in a comparative context. He writes also on matters of civil procedure in the U.S. federal courts. Patrick has spoken at conferences and symposia throughout the world, and his scholarship has been published in numerous student-edited and peer-reviewed law journals. He is a member of the Affiliates Advisory Group of the Younger Comparativists Committee for the American Society of Comparative Law. Patrick received his BSBA with honors from Bucknell University and his JD with honors from the University of Pittsburgh School of Law, where he served as Senior Articles Editor of the University of Pittsburgh Law Review.

Thank you to Mohamed, Rohan, Angélique, Maggie, Sandeep and Patrick for providing an invaluable service to our community of scholars interested comparative public law.

Print Friendly
Published on August 5, 2015
Author:          Filed under: Developments
 

What’s New in Comparative Public Law

–Rohan Alva, Advocate, India

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

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

Developments in Constitutional Courts

  1. In a rare move, the Indian Supreme Court heard a petition, at 3 A.M., filed on behalf of Yakub Memon, seeking review of the death sentence awarded to him. The Supreme Court ultimately came to dismiss the petition.
  2. The Supreme Court of Russia observed that ‘minor offences’ must no longer remain criminal acts. These observations came about when Vyacheslav Lebedev, the Chairman of the Supreme Court met with the Russian President. Such ‘decriminalization’ would see a reduction in approximately 300,000 cases.
  3. The U.S. Department of Justice formally petitioned the U.S. Supreme Court to ‘reverse’ a federal court’s decision, which made it harder for prosecutors to pursue ‘insider trading charges’.
  4. The Ukrainian Constitutional Court ruled that probable constitutional amendment legislations aimed at achieving division of power are consistent with the nation’s constitution.
  5. The Federal Constitutional Court of Germany declared that the German Parliament did not possess the necessary ‘legislative’ competence to effect legislation which provided for payments to ‘stay-at-home parents’.

In the News

  1. A court in Tripoli, Libya, handed down capital punishment to Saif Gaddafi, the son of former Libyan dictator Muammar Gaddafi.
  2. The Moldovan Constitution celebrated its twenty first anniversary on the 29th of July.
  3. The Maldivian Parliament, by a majority of 78-2, impeached the nation’s vice president.
  4. Three hundred and nine new legislations will come into force in North Dakota, U.S.A. Some of the laws include making the presentation of a voter ID mandatory, and laws which promote the expression rights of ‘student journalists’.
  5. A non-governmental organisation has been allowed to sue corporations responsible for an ‘oil spill’. This is the first suit filed under the revised Environment Protection Law which permits non-governmental organisations to commence actions against individuals who cause environmental pollution.

New Scholarship

  1. John R Morss, The International Legal Status of the Vatican/Holy See Complex (European Journal of International Law, forthcoming) (critically evaluating the status of the Vatican city as a state entity)
  2. Richard Moon, Conscientious Objections by Civil Servants: The Case of Marriage Commissioners and Same Sex Civil Marriages (proposing that, under the Canadian Charter, marriage commissioners are not entitled to avoid same sex marriage solemnisations on religious grounds)
  3. Jeffrey Jowell, Dawn Oliver and Colm O’Cinneide (eds.) The Changing Constitution (Oxford University Press, 2015) (a collection of essays in which the authors critique ‘UK’s constitutional development’ and address issues such as the exercise of governmental power in the U.K.)
  4. Eyal Benvenisti and Alon Harel, Embracing the Tension between National and International Human Rights Law: The Case for Parity (Global Trust Working Papers 04/2015) (suggesting that stronger protection of freedoms requires the existence of healthy ‘tension’ between municipal legislation and international law, rather than the subordination of one code to the other)
  5. Katie Sykes, The Appeal to Science and the Formation of Global Animal Law (European Journal of International Law, forthcoming) (tracing the international development of ‘global animal law’, and analysing the jurisprudential development of ‘animal welfare’)

Elsewhere on the Internet

  1. Jim Rutenberg, A Dream Undone, New York Times
  2. Fabiana Di Lorenzo, The Seafood Industry and Its Sustainability Challenge – Why the Government of Thailand and Global Retailers Will Work Towards Sustainability and Human Rights, Oxford Human Rights Hub
  3. Manoj Mate, A Challenge to Judicial Independence in India: The National Judicial Appointments Council (NJAC), Jurist
  4. William Partlett, Agendas of Constitutional Decentralization in Ukraine, Constitution Net
  5. Pierre De Vos, Why do dominant religions so often get a free pass from courts? Constitutionally Speaking

Call for Papers/Conferences

  1. A call for papers has been issued for an international conference on ‘What budget resources, fiscal and borrowing powers for the EU? to be held on the 12th and 13th of November, 2015. Interested participants must submit a 500 word abstract by the 30th of September, 2015.
  2. The Centre for Law and Policy Research invites applications for the position of Associate Editor in relation to a project on the Constituent Assembly Debates.
  3. The Centre for Gender Studies at the National Law University, Jodhpur invites papers for a seminar on ‘Capacity Building Among Women in India: Entrepreneurship & Estate’ to be held on the 2nd and 3rd of October, 2015. Abstracts no longer than 250 words should be sent in by the 25th of August, 2015.
  4. The New Zealand Centre for Public Law at Victoria University of Wellington, Faculty Law, Boston College Law School, and The International Society of Public Law (ICON·S) invite submissions for a two-day symposium on quasi-constitutionality and constitutional statutes, to be held on the Pipitea campus of Victoria University of Wellington, Faculty of Law (Old Government Buildings) on Thursday & Friday, May 19-20, 2016.
  5. Kabarak University School of Law, Boston College Law School and the International Society of Public Law invite submissions for a two-day Symposium on Constitutional Change and Transformation in Africa, to be held on the campus of Kabarak University in Nakuru on Thursday and Friday, June 9-10, 2016.
  6. The AALS Section on Poverty Law invites entries for a programme on ‘New Directions in Poverty Law’ to be held on the 8th of January, 2016. Abstracts or draft of papers must be sent in by the 1st of September, 2015.
  7. The Faculty of Arts at the University of Auckland and the New Zealand Centre for Human Rights Law, Policy and Practice invite papers for a conference on ‘War, Peace and International Order? The Legacies of The Hague Conferences of 1899 and 1907’. Abstracts are to be submitted by the 2nd of October, 2015.
Print Friendly
Published on August 3, 2015
Author:          Filed under: Developments