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

Hellerstedt and Standing: A Comparative View

Stefanus Hendrianto, University of Notre Dame

The issue of standing appears to be relatively marginal in comparative constitutional law, because comparative constitutional scholars tend to see standing as a technical issue. For instance, in analyzing the recent U.S. Supreme Court decision, Whole Women’s Health v Hellerstedt,[1]  many legal analysts have missed an important aspect of the case; the question of standing, which became one of the central arguments in Justice Thomas’s dissent.  Hellerstedt raises an important discussion on standing from a comparative constitutional law perspective.  More importantly, it raises bigger issues of judicial role.

One of the central concerns of Justice Thomas in his dissent was that the majority did not question whether doctors and abortion clinics should be allowed to sue on behalf of Texas women seeking abortions. In Justice Thomas’s view, the Court allowed abortion clinics and doctors to invoke a constitutional right that did not belong to them.[2] Justice Thomas thus raised an issue of third party standing. In the U.S. constitutional realm, a principle generally prevents standing when the asserted harm is a generalized grievance shared by all or a large class of citizens.[3] This principle prevents an individual from challenging a statute by asserting someone else’s constitutional rights.  Justice Thomas argues that the Court has shown a particular willingness to undercut restrictions on third party standing when the right to abortion is at stake.[4]

From a comparative constitutional law perspective, third party standing is not uncommon. There are variety terms to describe this mechanism such as actio popularis, jus tertii, or public interest standing. In many jurisdictions, anyone regardless of his or her own injury may file a challenge to a law that affects the public at large. In Israel, the Supreme Court has adopted the view that when the claim alleges a major violation of the rule of law (in its broad sense), every person in Israel has legal standing to sue.[5] The Indian Supreme Court has been well-known for developing procedural rules for third party standing since the 1970s.[6] The Indonesian Constitutional Court in its infancy ruled that anyone could come to the Court as a taxpayer,[7] public defender [8] and has even held that every citizen has standing to raise constitutional issues.[9]

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Published on August 24, 2016
Author:          Filed under: Analysis
 

What’s New in Public Law

Angelique DevauxCheuvreux Notaires, Diplômée notaire, LL.M 

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. South Africa’s Constitutional Court will hear a same-sex partnership inheritance case this week.
  2. The Colombian Constitutional Court ordered mining company Minas Paz de Oro to develop policies that will prevent environment damage in the areas surrounding in its planned open-pit mine in the Boyacá town of Tasco.
  3. The Administrative Court of Appeal of Marseille, France ruled that contractual public and private agents could be subject to different remuneration conditions.
  4. South Korea’s Constitutional Court will review the constitutionality of the law that obliges mobile service operators to block child pornography.
  5. Poland’s Constitutional Tribunal ruled that parts of a new law governing its own operation are unconstitutional, but the government said it won’t publish the ruling.

In the News

  1. Zambia’s opposition party challenged the results of the August 11 election, delaying the inauguration of president-elect Edgar Lungu and provoking questions of who should run the country.
  2. Macau’s lawmakers revised the country’s electoral law in an effort to fight corruption.
  3. Russia’s parliamentary elections are scheduled to take place shortly after the summer break under a changed election system.
  4. Polish prosecutors began an investigation to determine whether the head of constitutional tribunal exceeded his authority by not allowing three judges chosen by the ruling parliamentary majority to rule on cases.
  5. Lithuania will consider a constitutional amendment to define “family” as exclusively based on heterosexual marriage.
  6. Chilean President Ricardo Lagos launched a website encouraging public consultation for reforming the constitution.
  7. German Chancellor Angela Merkel declared that women should be banned from wearing a face veil in various areas, including in school and while driving.
  8. Ethiopia’s Feyisa Lilesa crossed the finish line in his silver medal marathon run at the Rio Olympics with his arms raised and crossed in an X, a gesture of protest against the Ethiopian government’s actions against the Oromo ethnic group.

New Scholarship 

  1. Jamie Cameron, Collateral Thoughts on Dialogue’s Legacy as Metaphor and Theory: A Favourite from Canada, University of Queensland Law Journal (forthcoming 2016) (discussing the law review article “The Charter Dialogue Between Courts and Legislatures” and examining how and why “dialogue” became a runaway concept and what that tells us about the nature and formation of constitutional theory)
  2. Thoryaldur Gylfason and Anne Meuwese, Digital Tools and the Derailment of Iceland’s New Constitution, CESifo Working Paper Series No. 5997 (2016) (mapping the use of digital tools in the Icelandic constitutional revision process of 2011 and discussing its aftermath in subsequent years)
  3. Maria Joshua, If You Can’t Include Them, Exclude Them: Countering the Arab Uprisings in Algeria and Jordan, German Institute of Global and Area Studies Working Paper No. 286 (2016) (comparing protest management strategies of the ruling elites of Algeria and Jordan throughout the Arab uprisings)
  4. Lovemore Chiduza and Paterson Nkosemntu Makiwane, Strengthening Locus Standi in Human Rights Litigation in Zimbabwe: An Analysis of the Provisions in the New Zimbabwean Constitution, Potchefstroom Electronic Law Journal (2016) (discussing access to justice in Zimbabwe and the concept of locus standi under the Lancaster House Constitution)
  5. Nicholas Aroney, Reforming Australian Federalism: The White Paper Process in Comparative Perspective, in A People’s Federation (Mark Bruerton, Robyn Hollander and Ron Levy eds.) (forthcoming) (discussing the shelved White Paper on the Reform of the Federation in Australia in a comparative perspective)
  6. Sharon Yadin, Too Small to Fail: State Bailouts and Capture by Industry Underdogs,43 Capital University Law Review 889 (2016) (asserting that regulatory capture can be obtained not only by large firms but also by small ones, through special rhetoric of blame, intimidation and playing the victim)
  7. Parliament and Parliamentarism, A Comparative History of a European Concept (Pasi Ihalainen, Cornelia Ilie, and Kari Palonen Berghahn eds.) (2016) (debating parliamentarism in Europe in three parts: the conceptual history of parliaments, the discourse and rhetoric of modern parliaments, and parliament and parliamentarism in political theory)
  8. Jedidiah J. Kroncke, The Futility of Law and Development, China and the Dangers of Exporting American Law (2016) (addressing the role of comparative law and the place of Chinese law throughout U.S. legal culture, from Congress to law schools)
  9. Gabrielle J. Appleby, The Solicitor-General and the Constitution, in The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest (2016) (explaining the role of the Solicitor-General in Australia in comparative perspective)
  10. Ronald J. Gilson, From Corporate Law to Corporate Governance, in Oxford Handbook of Corporate Law and Governance (forthcoming) (tracking how corporate law became corporate governance—from legal rules standing alone to legal rules interacting with non-legal processes and institutions)
  11. Lena Salaymeh, The Beginnings of Islamic Law, Late Antique Islamicate Legal Traditions (forthcoming 2016) (examining the beginnings of Islamic law through case studies)

Calls for Papers and Announcements

  1. The University of Bristol Law School issued a call for papers for an international workshop titled“Democracy Beyond Elections: Empowering Citizens, Strengthening Participation” to be held at the University of Bristol (UK) on March 17-18, 2017, with the support of the British Academy. The deadline for abstract submission is September 30, 2016.
  2. The University of Houston Law Center issued a call for papers for its 5th Annual State and Local Government Law Works-in-Progress Conference to be held on October 7 and 8, 2016 in Houston, Texas.
  3. The co-editors of the Transnational Dispute Management Journal invite articles exploring the legal aspect of the controversy surrounding the Trans-Pacific Partnership. The deadline for submission is September 3, 2016.
  4. The Transnational Dispute Management Journal invites papers on Time and Cost Issues in International Arbitration.  Papers should be submitted by November 2016.
  5. The Law & Economics Center at George Mason University Antonin Scalia Law School is now considering applications for two new LEC Workshops for Law Professors.
  6. The Tilburg Law Review (TiLR) invites article submissions for its fall 2017 special issue on “Translating Law.”
  7. The Centre for Tax Law at the University of Cambridge invites proposals for papers to be presented at the second Tax Policy Conference to be held on April 11, 2017.
  8. The M.K. Nambyar SAARC Law Centre and the Centre for Constitutional Law, Public Policy and Governance at NALSAR University is organizing a course on Comparative Constitutional Law Perspectives to be held on November 21-26, 2016.

Elsewhere Online

  1. Gareth Davies, Could it All Have Been Avoided? Brexit and Treaty-Permitted Restrictions on Movement of Workers, European Law Blog
  2. Thabang Mokgatle, 20 years after the TRC: Are we any the better?, AfricLaw
  3. Thomas Hochmann, L’interdiction du “Burkini” est une faute juridique et politique, Le Monde [Article in French]
  4. Tomasz Tadeusz Koncewicz, PiS wyprowadza Trybunał z Europy, Wyborcza [Article in Polish]
  5. Salvatore Curreri, Banning The Burkini In Italy Would Be Unconstitutional And Counterproductive, The Huffington Post
  6. Bassey Etim, Readers React: Should Air-Conditioning Be a Right for Prisoners? The New York Times
  7. Maya Manian, Protecting Abortion Rights After Whole Woman’s Health, Jurist

 

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Published on August 22, 2016
Author:          Filed under: Developments
 

Conference Report–International Symposium on “Constitutionalism under Extreme Conditions,” University of Haifa

Maja Sahadžić, University of Antwerp

On July 18-19 2016, the University of Haifa hosted the International Symposium “Constitutionalism under Extreme Conditions” organized by the Minerva Center for the Rule of Law under Extreme Conditions at the University of Haifa and Boston College Law School under the auspices of the Israeli Association of Public Law. The Symposium was co-convened by Richard Albert (Boston College Law School) and Dr. Yaniv Roznai (the Minerva Center for the Rule of Law under Extreme Conditions). The aim of the Symposium was to bring together a group of scholars for a high-level discussion on constitutionalism and emergencies. The Symposium featured seven panels, one poster session, and a keynote speech delivered by Aharon Barak, former President of the Supreme Court of Israel. Each session consisted of two papers presentations. However, the paper authors did not present their papers; the assigned discussants had 15 minutes to critique the paper after which the author had the opportunity to respond to questions over the course of one hour devoted to the paper. This report provides a brief summary of the papers, which will be published in an edited book. Video recordings of the Symposium are available here.

symposium photo 2

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Published on August 19, 2016
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Of Constitutional Defiance, Migration and Borrowing of Unconstitutional Tactics and European Resistance

Tomasz Tadeusz Koncewicz, University of Gdansk

Constitutional Defiance

The tempo of the attack against democracy in Poland is relentless. On 22 July 2016 the Polish Parliament passed the Law on the Polish Constitutional Court and confirmed that the parliamentary majority lead by Law and Justice party (PiS) is not holding back. The PiS is determined to make sure that the Court is tamed and incapacitated.

By way of a statute, 1997 Constitution has been picked apart and its provisions have been short-circuited at every turn. The Law re-introduces the provisions that were already either disqualified as clearly unconstitutional by the Court (judgment of 3 December 2015 ((case K 34/15)), 9 December 2015 ((case K 35/15)) and most recently of 9 March 2016 ((case K 47/15))) or criticized in the Opinion of the Venice Commission of 11 March 2016 (no. 833/2015).

The persistent refusal by the government to publish these judgments under the pretense of procedural irregularities completes the picture of constitutional defiance that shows no signs of abating. The solution to the PiS-induced constitutional crisis should be for the President immediately to follow the constitutional commands as interpreted by the Court and swear in the three judges selected constitutionally by the old Sejm, and for the government to publish all of the judgments of the Court, rather than engaging in elaborate statutory revision(s) of the Constitution. Instead, as a result of the constitutional defiance, one gets a situation in which dual legal systems interact at the same time in Poland: one constitutional and under attack, the other unconstitutional and shielded by the political power.

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Published on August 17, 2016
Author:          Filed under: Analysis
 

What’s New in 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. Zambia’s Constitutional Court ordered all cabinet and provincial ministers to vacate their posts.
  2. Poland’s Constitutional Court ruled against a set of government reforms aimed at changing how the court works.
  3. Italy’s Constitutional Court provided the green light for a constitutional referendum.
  4. Belize’s Supreme Court struck down a law banning sodomy, declaring it unconstitutional.
  5. A Nice court upheld a ban on full-body swimsuits, known as burkinis, in the southern French city of Cannes.

In the News

  1. The U.S. Department of Justice issued a report addressing racial bias by the Baltimore police.
  2. A Brazilian judge ordered 2016 Olympics organizers to allow peaceful protests.
  3. Guatemala’s indigenous groups have demanded that their rights to land and ancestral justice systems be enshrined in a new constitution that recognizes Guatemala as plurinational.
  4. Turkey announced plans to abolish military high courts by amending the country’s constitution.
  5. Japan’s Emperor Akihito indicated that Prime Minister Shinzo Abe should proceed carefully before revising Japan’s postwar constitution and signaled again that he would like tostep down from the world’s oldest hereditary monarchy.
  6. China’s draft cyber-security law aimed at handling cybersecurity threats from abroad more forcefully was submitted to the top legislature for a second reading.
  7. Thailand announced that the charter draft of its new constitution is expected to be enacted in October or November.

New Scholarship

  1. Jamie Cameron, Legality, Legitimacy and Constitutional Amendment in Canada (2016) (explaining how the legality and legitimacy of amendment failed to align prior to patriation of the Canadian Constitution)
  2. Peter Cane, Controlling Administrative Power: An Historical Comparison (2016) (providing a comparative analysis for controlling administrative power in different legal regimes)
  3. Se-shauna Wheatle, The Constitutionality of the ‘Homosexual Advance Defence’ in the Commonwealth Caribbean, 16 Equal Rights Review 38 (2016) (presenting a critical analysis of the homosexual advance defence in the Commonwealth Caribbean)
  4. Maoz Rosenthal, Gad Barzilai & Assaf Meydani, Constitutional Judicial Review, Chief Justices, and Judges’ Preferences: Institutional Lessons and Israel’s High Court of Justice (2016) (providing an empirical analysis of judicial behavior using institutional lessons from Israel’s High Court of Justice)
  5. Yen-Tu Su & Han-Wei Ho, The Causes of Rising Opinion Dissensus on Taiwan’s Constitutional Court (2016) (analyzing the causes that led to the rise of the dissent opinions in Taiwan’s Constitutional Court)
  6. Jay Krehbiel, Public Awareness and the Behavior of Unpopular Courts (2016) (considering the consequences of public awareness for the behavior of courts that lack public support)
  7. Gian Marco Solas, Alternative Litigation Funding and the Italian Perspective, European Review of Private Law (2016) (addressing the emergence of Alternative Litigation Funding (ALF) in the Italian Legal System)
  8. Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century, Human Rights Law Review (2016) (calling for returning to the notion of “human rights” as international human rights law and maintaining the distinction between law and morality or law and politic)
  9. Andreas Follesdal, Implications of Contested Multilateralism for Global Constitutionalism, Global Constitutionalism (forthcoming) (discussing the implications and purposes of the term “global constitutionalism”)
  10. Jack Tsen-Ta Lee, Rethinking the Presumption of Constitutionality in Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L. Neo ed.) (2016) (discussing the strong presumption of constitutional validity applied by Singapore courts in performing judicial review)

Call for Papers 

  1. The Editorial Board of BioLaw Journal – Rivista di BioDiritto has launched a call for papers dedicated to the theme of end of life issues.
  2. The Max Planck Foundation for Peace and the Rule of Law has two vacancies: (1) a Senior Research Fellow for Ph.D. Programme for Afghan Jurists; (2) and a Senior Research Fellow for Administrative Law Afghanistan Project.
  3. The Law Futures Centre, Griffith University Law School in conjunction with the Southern Cross University School of Law and Justice welcome submissions for the 2016 Conference of the Law and Society Association of Australia and New Zealand to be held November 30, 2016 to December 3, 2016 in Brisbane.
  4. The Indian Journal of Law and Public Policy (IJLPP) invites submissions for its upcoming issue.
  5. The University of Houston Law Center will be hosting the 5th Annual State & Local Government Law Works-in-Progress Conference on Friday, October 7, 2016 and Saturday, October 8, 2016.

Elsewhere Online

  1. Jesse Blackbourn & Nicola McGarrity, The Dangers of Sunsets in National Security, AUSPUBLAW Blog
  2. Jake Maxwell Watts & Nopparat Chaichalearmmongkol, Thai Constitution Vote Entrenches Military’s Influence, Wall Street Journal
  3. Jonathan Soble, At 82, Emperor Akihito of Japan Wants to Retire. Will Japan Let Him?, N.Y. Times
  4. The Monthly Overview – June 2016 of Belgium Constitutional Law Blog, BelConLawBlog
  5. Jethro Mullen, Global business to China: Scrap new cyber rules, CNN
  6. Judicial Review Systems in West Africa: A Comparative Analysis, ConstitutionNet
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Published on August 15, 2016
Author:          Filed under: Developments
 

Video Interview: Constitutional Revision in Greece, Featuring Alkmene Fotiadou

Richard Albert, Boston College Law School

In this installment of our video interview series at I-CONnect, I ask Alkmene Fotiadou whether the recently-proposed constitutional revision in Greece could be unconstitutional. We discuss how the revision–which would be approved by referendum–departs from the formal rules of constitutional amendment in the Greek Constitution, and why, according to Fotiadou, this might make the revision unconstitutional.

A news report on the revisions themselves is available here.

Alkmene Fotiadou is a Research Associate at the Centre for European Constitutional Law. She has written important papers on constitutional change, constitutional resilience, and on social and economic rights.

Fotiadou’s provocative blog post at Constitution Making & Constitutional Change, entitled “Greece Faces the Possibility of an Unconstitutional Constitutional Revision,” introduced the possibility that the proposed constitutional revision might be unconstitutional.

The interview runs 29 minutes, and is available here.

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Published on August 13, 2016
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The Brazilian Constitutional Amendment Rate: A Culture of Change?

Juliano Zaiden Benvindo, University of Brasília

Tom Ginsburg and James Melton, in their fascinating article “Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty, raise a powerful argument against the well-worn claim that the number of amendments is directly related to the flexibility of constitutions.[1] Their argument, although methodologically complex, is clear: culture plays a more relevant role in explaining why constitutions formally change than institutional thresholds.[2]

Among the many examples they bring, Brazil stands out as an “ultra flexible”[3] country where “the stakes of amendments are lower and so cultural resistance to amendment is less than in societies where it is infrequent.”[4] Indeed, in July, Brazil passed its ninety-second constitutional amendment. Since the Brazilian constitution dates from October 1988, this gives a rate of more than three a year despite a relatively rigid constitutional framework requiring approval by three-fifths of the members of each chamber.[5]

In a country where formal constitutional changes are so intensive, it is reasonable to conclude that the constitution may not be that central a document.[6] Still, the number of amendments has soared during the most vivid years of democratic life and its target is the most legitimate, pluralist, and venerated constitutional text of Brazilian history. More intriguing, although this rate of amendments may astonish some foreign lawyers, the Brazilian constitution has proven particularly resilient against formal changes to its core framework, that is, to the system of government and the bill of rights. Therefore, ninety-two amendments in less than thirty years may sound like a lot, but it does not necessarily mean that Brazil is deeply unstable when it comes to its constitutional text. In fact, the contrary view seems more accurate.

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Published on August 10, 2016
Author:          Filed under: Analysis
 

What’s New in Public Law

–Rohan Alva, Advocate, New Delhi

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

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

Developments in Constitutional Courts

  1. The Indian Supreme Court ruled that former chief ministers of states were not entitled to permanent government housing.
  2. The U.S. Supreme Court suspended the operation of a lower court judgment that had allowed a transgender student to use the bathroom which matches his gender identity.
  3. In Germany, the Federal Court of Justice ruled against the introduction of “inter” as a gender category.
  4. The Constitutional Court of Korea declared that it is constitutional to impose a ban on smoking in restaurants.
  5. Justice Ramesh Ranganathan and Justice Shantanagoudar Mohan Mallikarjunagouda were appointed as Acting Chief Justices of the High Courts of Andhra Pradesh/Telangana and Kerala, respectively.
  6. The Supreme Court of Delaware declared that empowering judges, and not juries, with the power to award the death penalty, is unconstitutional.

In the News

  1. Tokyo elected its first female governor, Yuriko Koike, who garnered nearly a million more votes than her closest competitor.
  2. The Indian government intends to create a secretariat for dealing with complaints filed against judges of the Supreme Court and the state High Courts, as well as for evaluating potential nominees.
  3. The Canadian government announced the introduction of a new process by which justices will be appointed to the Supreme Court of Canada.
  4. In India, the Rajya Sabha passed the 122nd Amendment to the Indian Constitution, which aims to introduce the Goods and Services Tax.
  5. In Nepal, Pushpa Kamal Dahal was sworn in as the nation’s prime minister.
  6. In Italy, the Senate approved legislation aimed at encouraging food donation to charities.

New Scholarship

  1. Stephan Jaggi, The 1989 Revolution in East Germany and its Impact on Unified Germany’s Constitutional Law – The Forgotten Revolution? (2016) (arguing that the 1989 Revolution in East Germany did not lead to an unconditional adoption of the West German Basic Law by the new East German states but brought about its own constitutional agenda, which had a substantial impact on unified Germany’s constitutional law)
  2. Zhai Zhiyong, The Making and Structure of the 1982 Constitution of China, Tsinghua China Law Review (2016) (examining the factors which have enabled the Chinese Constitution to respond to complex societal changes)
  3. Fundamental Rights and Directive Principles: The (Un)fulfilled Promises of the Indian Constitution, VRU Special Issue (2016) (a set of essays that analyse the possibilities and difficulties of the Indian constitution)
  4. Interparliamentary Cooperation in the Composite European Constitution, Nicola Lupo and Cristina Fasone (eds.) (2016) (analysing the place and functioning of interparliamentary cooperation in the EU composite constitutional order, taking into account both the European and the national dimensions)
  5. Constitutional Interpretation in Singapore, Jaclyn L. Neo (ed.) (2016) (examining the underpinnings of Singapore’s constitutional system, exploring how Singapore courts have dealt with issues related to rights and power, and setting developments in Singapore in the wider context of new thinking and constitutional developments worldwide)
  6. Salim Farrar and Ghena Krayem, Law, Religion and the Challenge of Accommodation, in S. Farrar and G. Krayem, Accommodating Muslims under Common Law: A Comparative Analysis (forthcoming) (introducing the main themes that the book discusses and the nature of the comparative examination of how countries such as Australia and Canada approach the question of accommodation)
  7. Susan York Kneebone, Comparative Regional Protection Frameworks for Refugees: Norms and Norm Entrepreneurs, International Journal of Human Rights (2016) (comparatively analysing how the EU, Latin America, and Southeast Asia have responded to the interest of refugees, and examining how refugee protection can be strengthened)
  8. Jacco Bomhoff, Beyond Proportionality: Thinking Comparatively About Constitutional Review and Punitiveness, LSE Legal Studies Working Paper (2016) (exploring the benefit of comparative studies in better understanding the punitiveness-proportionality relationship)
  9. Asli U. Bâli and Hanna Lerner, Constitutional Design Without Constitutional Moments: Lessons from Religiously Divided Societies, Cornell International Law Journal (forthcoming) (analysing how certain western conceptions of what a constitution is meant to achieve are not best suited for countries which may be divided along religious lines, and proposing a more nuanced approach to the drafting of a constitution)
  10. Oren Fliegelman, The Question of Education in the 2014 Tunisian Constitution: Article 39 and its Ambiguous Values, Middle East Law and Governance (2016) (examining the history, depth, and scope of Article 39 of the Tunisian constitution, which deals with education)
  11. Douglas McDonald, Worlds Apart: The Appointment of Politicians as Judges, Alternative Law Journal (2016) (examining the unique perspectives which politicians, who are appointed as judges in Australia, could bring to the court, and analysing the reasons for politicians no longer being regularly appointed as judges)

Call for Papers

  1. Papers are invited for the “Society of Law Teachers of Southern Africa Conference 2017” that will be hosted by the Faculty of Law, University of Namibia from January 16-20, 2017. Abstracts of papers should be sent in by August 31, 2016.
  2. A call for papers has been issued for an international workshop on “Social Inclusion and Poverty Eradication” to be held at Harvard University on November 17-18, 2016. Abstracts should be submitted by August 15, 2016.
  3. Contributions are invited by the Australian Feminist Law Journal for a general issue to be published in December, 2016. The articles may be between 8,000-12,000 words.
  4. Participants are invited for the “Texas Academic Support and Legal Writing Scholars Colloquium” to be hosted by Texas A&M University School of Law on September 23, 2016. Interested participants must register by September 1, 2016.
  5. Submissions are invited by the International Journal of Migration and Border Studies for its 2017 issues. Papers must be submitted by December 31, 2016.

Elsewhere Online

  1. Alkmene Fotiadou, Greece Faces the Possibility of an Unconstitutional Constitutional Revision, Constitutional Making & Constitutional Change
  2. Sakshi Aravind, Compensatory Afforestation Bill-A Spectre of Old Problems: Part I, Part II, Law and Other Things
  3. Gideon Muchiri, The upcoming Hate Crimes Bill: A welcome development in the fight against xenophobia and hate crimes in South Africa, AfricLaw
  4. Jonathan Bruno, The Freedom of Information Act Was Just Amended. Here’s What Changed-And Didn’t, Jurist
  5. Cass R. Sunstein, Pocket Constitution Packs a Few Surprises, Bloomberg
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Published on August 8, 2016
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Constitutional Court Crisis in Slovakia: Still Far Away from Resolution

Tomáš Ľalík, Associate Professor, Comenius University (Bratislava)

July 2 marked the second anniversary of incumbent Slovak President Andrej Kiska’s refusal to fill in two vacancies at the Constitutional Court (CC). The CC has been managing its affairs two judges short since then, but the situation deteriorated further this February when the term of a third judge expired.

The head of state again refused to name judges to the Court last month. This could potentially leave it crippled for months if not years to come. The analysis below provides the timeline of the crisis together with its political background. This episode demonstrates the vulnerability of the CC as an institution, which often finds itself at the mercy of the political arms of government. What is more, transitional states, as Slovakia itself remains, are far more sensitive to constitutional conflicts than established democracies.

The Beginning of the Crisis: Summer of 2014

The Constitution provides that there be 13 judges at the CC. The selection process was rather straightforward until 2014: first the National Council (Parliament) nominates twice the number of candidates who are to be appointed to the Court; the President then selects from them the appropriate number of CC judges for a non-renewable 12-year term. A judge enters office upon taking the oath administered by the President.

Early symptoms of the crisis began to show already in the summer of 2014, long before President Kiska had even been sworn into the office.

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Published on August 5, 2016
Author:          Filed under: Analysis
 

Video Interview: Constitutional Statutes, Featuring Farrah Ahmed and Adam Perry

Richard Albert, Boston College Law School

In this latest installment of our video interview series at I-CONnect, I interview Farrah Ahmed (Melbourne) and Adam Perry (Oxford) on the phenomenon of “constitutional statute,” the subject of two of their recently co-authored papers. Both papers are available for download here: (1) The Quasi-Entrenchment of Constitutional Statutes; and (2) Constitutional Statutes.

In the interview, Ahmed and Perry explain what constitutional statutes are, how we can identify them, how courts should treat them, and why all of this matters. We discuss constitutional statutes specifically in the British constitutional context but we also explore the phenomenon in comparative perspective.

Farrah Ahmed is an Associate Professor at Melbourne Law School and also Associate Director of its Asian Law Centre. Her research concerns public law, legal theory and family law.

Adam Perry is an Associate Professor at the University of Oxford, Faculty of Law, and Garrick Tutor and Fellow at Brasenose College. His scholarship focuses on administrative law, constitutional law, and jurisprudence.

The full interview runs 30 minutes, and is available here.

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Published on August 4, 2016
Author:          Filed under: Analysis