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I·CONnect

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

President Macri and Judicial Independence on the Argentine Supreme Court

Andrés del Río, Federal Fluminense University (UFF), Brazil

During the presidential election campaign of 2015, Mauricio Macri, leader of the then-opposition Republican Proposal Party (PRO), included in his platform his commitment to “strengthen the rule of law, strictly respecting the division of powers, the independence of justice and the constitutional principles and guarantees, together with full freedom of expression.” His focus on these principles was aimed at part in strengthening the independence of the Argentina Supreme Court, which has long been seen as a politicized institution.

Macri won the elections and became president. At his inauguration on December 10, 2015, he told parliament: “Under our government there will be no Macrista judges. Justice and democracy simply do not exist without an independent judiciary. But we must go along with justice in a process to clean it from political vices. Judges cannot be party militants.” Macri declared that his government would rest on the following pillars: the strengthening of institutions, the separation of powers and the independence of judges.

On December 14, only a few days after his victory in the runoff election, Macri appointed two new judges to the Supreme Court. As he had announced during the campaign, the judicial system was a sector where adjustments were needed: all vacancies on the Supreme Court had to be filled, and judicial independence had to be restored by avoiding the appointment of partisan judges.

The Argentine Constitution stipulates that the president must send nominations for the country’s highest court to the Senate. These nominees then must go through a public hearing process, and approval requires a two-thirds vote of the Senate. This procedure was not followed, however, with the two candidates chosen by Macri, Carlos Rosenkrantz and Horacio Rosatti.

Contrary to his pre- electoral discourse, Macri preferred to appoint them by the promulgation of a decree – namely, Decree 83/2015. The legal basis for this decree is a recess appointment clause found in Article 99, paragraph 19, of the Constitution: “Vacancies for posts requiring the consent of the Senate which occur during its recess can be filled through appointments by delegation which will expire at the end of the next Legislature.” That is, the president appointed the judges provisionally. They will only remain in office until November, 30, 2016 (the end of the current congressional session), unless they are meanwhile approved by the Senate. This constitutional provision has been used only once before in Argentina, in 1852. At that time, Argentina had no national structure as we now know it. Not surprisingly, Macri’s decree prompted an immediate outcry.

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Published on February 5, 2016
Author:          Filed under: Developments
 

The United States’ Approach to European-Style Family Rights and National Security: The Case of Kerry v. Din

–Francesca M. Genova, University of Notre Dame

In June, the United States Supreme Court handed down a case considering marriage, national security, and fundamental human rights that provides a comparison with the European Union system of rights. Unlike the Supreme Court’s blockbuster marriage case this past year, Kerry v. Din has yet to garner significant attention. This case involves a wife’s asserted right to live in the United States with her husband. The case’s resolution illustrates the justices’ divergent perspectives on whether certain constitutional rights—rights that resemble those in the European Union—exist at all. The plurality continues to distinguish itself from the European rights discourse by narrowly defining a right and then rejecting it while the dissent would align itself to the European Union’s jurisprudence by recognizing broader rights.

In Kerry v. Din, a wife attempted to receive a visa for her husband to live with her in the United States. Din, herself a naturalized U.S. citizen who came to the United States as a refugee, is married to an Afghan citizen who had been a civil servant in the Taliban regime.[1] After the U.S. government classified him as her immediate relative, he filed a visa application.[2] The government denied his application under an immigration law prohibiting those who had been involved in “terrorist activities” from receiving visas.[3] The statute defines “terrorist activities” to include materially supporting a terrorist organization and acting as a terrorist organization’s representative.[4] At the Supreme Court, Din argued that the government violated her due process rights under the Fifth Amendment, as she had a “constitutional right to live in the United States with her spouse” and was not afforded sufficient process in the denial of her husband’s visa.[5]

The Supreme Court denied her claim in a plurality decision authored by Justice Antonin Scalia. In this opinion, the plurality traced the definition of “life, liberty or property” from the Magna Carta to the founding of the United States, determining what the terms meant at the Fifth Amendment’s ratification.[6] Notwithstanding this originalist analysis, the Court then considered its precedent concerning “substantive due process,” the unenumerated fundamental rights any infringement of which can violate one’s constitutional right to due process.[7]  The plurality defined the right that Din asserted as “the constitutional right to live in the United States with her spouse”,[8] using a narrow approach to defining constitutional rights that the Court has utilized in other cases.[9] It concluded: “There is no such constitutional right.”[10] The government’s prior strict regulation of spousal immigration was evidence that no such fundamental marriage right as Din asserted exists.[11] Instead, “[n]either Din’s right to live with her spouse nor her right to live within [the United States] is implicated” in her husband’s visa denial, as these rights are distinct: she could live with her spouse in a foreign country, or she could live in the United States.[12] The government’s action did not deprive Din of her own life, liberty, or property.[13]

This understanding of rights juxtaposes that of the European Union [EU].

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Published on February 3, 2016
Author:          Filed under: Analysis
 

Reminder–Call for Panels and Papers–Borders, Otherness and Public Law–2016 ICON-S Conference–Berlin, June 17-19, 2016

The first two Annual Meetings of ICON-S (Florence 2014 and New York 2015) have been overwhelming successes. The time has come to turn our attention to the 2016 Annual Meeting. ICON-S, the International Society of Public Law, invites paper and panel submissions for its 2016 Annual Meeting to be held at the Humboldt University, Berlin, Germany, on June 17-19, 2016.

The overarching theme of the ICON-S 2016 Conference will be “Borders, Otherness and Public Law”. Today, more than ever before, questions of movement, displacement and belonging, equality and inequality, borders and otherness have become hot-button issues, passionately debated worldwide, and are likely to remain at the forefront of public discourse and scholarly research for the foreseeable future. Line-drawing, practices of inclusion and exclusion, borders and boundaries of many kinds raise persistent questions within contemporary domestic, transnational and international public law.

The Conference will feature a keynote address by Françoise Tulkens, former Judge of the European Court of Human Rights, as well as three plenary sessions focusing on the general theme of Annual Meeting. The program can be found here. At the heart of the Conference, however, are the two days devoted to the papers and panels selected through this Call.

ICON-S welcomes proposals for fully-formed panels as well as individual papers dealing with any aspect of the Annual Meeting’s theme. However, paper and panel proposals need not be limited to that theme, and may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, criminal law, immigration and citizenship law, human rights, and/or international law in their entire varieties, and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We particularly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

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

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

All submissions must be made through our newlly designed ICON-S website by February 15, 2016. Successful applicants will be notified by April 1, 2016.

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

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

See you at ICON-S Berlin 2016!
Gráinne de Búrca (NYU) & Ran Hirschl (University of Toronto)
Co-Chairs of ICON-S Executive Council

Richard Albert (Boston College); Lorenzo Casini (University of Rome); Sabino Cassese (Scuola Normale Superiore, Pisa); Moshe Cohen-Eliya (College of Law & Business, Tel Aviv); Rosalind Dixon (University of New South Wales); Mattias Kumm (NYU, WZB & Humboldt); Matthias Ruffert (University of Jenna); Hélène Ruiz Fabri (Max Planck Institute, Luxembourg); Joseph H.H. Weiler (European University Institute)
Members of the ICON-S 2016 Organizing Committee

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Published on February 2, 2016
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. Senegalese leader Macky Sall submitted a proposal on presidential term limits to the country’s Constitutional Council.
  2. The Constitutional Court of Central African Republic invalidated the first round of parliamentary elections.
  3. A Delaware Superior Court judge certified questions to the Delaware Supreme Court on the constitutionality of the state’s death penalty.
  4. Mexico’s Supreme Court struck down a same-sex marriage ban.
  5. Venezuela’s Constitutional Court ruled that a declaration of economic emergency in the country is constitutional.
  6. A judge of the U.S. District Court for the Middle District of Louisiana declared a portion of Louisiana’s abortion law unconstitutional.

In the News

  1. Nepal’s parliament voted to approve constitutional amendments in a bid to resolve a months-long dispute with ethnic minority protesters demanding more political representation.
  2. Malaysia’s attorney general cleared the country’s prime minister of corruption charges.
  3. French Minister of Justice Christiane Taubira resigned over disagreement with the country’s president on a law to strip convicted terrorists of citizenship.
  4. Thailand published a draft of its twentieth constitution.
  5. China’s lawmakers are drafting a law that is likely to restrict the work of NGOs.

New Scholarship

  1. Lionel Smith, What is Left of the Non-Delegation Principle?, in Current Issues in Succession Law, B. Häcker and C. Mitchell (eds.) (forthcoming 2016) (addressing whether case law allows a testator to delegate will-making power)
  2. Shucheng Wang, Reconciling Hong Kong’s Final Authority on Judicial Review with the Central Authorities in China: A Perspective from ‘One Country, Two Systems’, 27(2) Public Law Review (forthcoming 2016) (examining the nature of Hong Kong’s final authority on judicial review)
  3. Santiago Legarre, New Trends in Latin American Constitutionalism: An Overview, 4(1) Notre Dame Journal of International & Comparative Law (2016) (offering remarks on constitutionalism and the rule of law in Latin America)
  4. Myrna Pérez, Election Integrity Measures, with a Pro-Voter Bent, Brennan Center for Justice (2016) (arguing for sensible election regulations that protect integrity and make it easy to vote)
  5. Laura Carlson, Academic Freedom and Rights to University Teaching Materials: A Comparison of Swedish, American and German Approaches (2016) (exploring the issue of the ownership of teaching materials from a comparative law perspective)

Calls for Papers and Announcements

  1. Registration is now open for the summer course on “Constitution Building in Africa” at the Central European University in Budapest, Hungary, onJuly 11-22, 2016. The course will feature distinguished faculty including Omar Hamadi, Babacar Kante, Christina Murray, H. Kwasi Prempeh, Jill Cottrell and Yash Ghai. More information is available here. The course description is as follows: History has seen several waves of constitution-building in the 20th century with an unparalleled boom starting in the 1990s after the fall of the Berlin wall. And while experts recently announced the end of this boom in new constitutions after the Cold War, the world is witnessing another wave of constitution-building, this time predominately in Africa. This burst of activity has given rise to a range of new ideas about the nature and purpose of constitutions and constitution-making, constitutional solutions to contemporary problems, and the proper role of international actors. The two-week research course intends to tackle complex societal, political and legal problems in constitution-building from an interdisciplinary perspective, informed by field experience. We seek to combine different disciplines (mostly comparative law and political science) and perspectives (comparative governmental systems; electoral systems; decentralization; human rights; comparative constitutional law; good governance; etc) to offer new insights on a classic subject of the highest academic and practical relevance.
  2. The Harvard Journal of Law & Gender welcomes unsolicited manuscripts and comments on issues relating to gender and the law, feminist jurisprudence, and social equality.
  3. Consortium for Social Research on Turkey (CSRT) in collaboration with Center for Policy and Research on Turkey (Research Turkey) and the Student Collective of Turkey at the New School invites paper submissions for a full-day conference on constitutional politics in Turkey to be held at the New School for Social Research, New York, on March 4, 2016.
  4. Organizers have issued a call for papers for the international criminal justice stream at the Socio-Legal Studies Association Annual Conference at Lancaster University to be held on April 5-7, 2016.
  5. The “Temporalities, Law & Security” stream is soliciting paper and panel submissions for a conference on “‘New’ Legal Temporalities? Discipline and Resistance Across Domains of Time,” at the University of Kent on September 8-10, 2016.
  6. Northwestern University Pritzker School of Law, Cardozo Law School, and the United States Patent & Trademark Office (USPTO) welcome applications for the third annual Roundtable on Empirical Methods in Intellectual Property that will take place in Washington, D.C. at the USPTO on April 29-30, 2016.

Elsewhere Online

  1. Tomasz Tadeusz Koncewicz, “2004 EU Accession” as a Founding Moment? Of lost opportunities, alienating constitutionalism and vigilant courts, Verfassungsblog
  2. Mulela Margaret Munalula, The 2016 Constitution of Zambia: elusive search for a people driven process, ConstitutionNet
  3. Jacob Gershman, AM Roundup: Parole Rights for Juvenile Killers, Wall Street Journal Law Blog
  4. Marc Degirolami, Comparing Traditionalism and Originalism, Liberty Law Blog
  5. Glenn C. Smith, In Deciding DAPA Dispute, Will the Justices Reach Constitutional Questions?, Jurist
  6. Gerard Magliocca, William Crosskey’s Unconventional Ideas, Concurring Opinions
  7. Satang Nabaneh, Banning female circumcision in The Gambia through legislative change: The next steps, AfricLaw
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Published on February 1, 2016
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Judges, Democracy and the “New Commonwealth Model of Constitutionalism”

Tom Hickey, Dublin City University

Aileen Kavanagh and Joseph Raz are among many supporters of constitutional judicial supremacy who characterise their support as justified despite what they see as its non- or perhaps even anti-democratic nature.[1] They employ the “ends-justifies-the-means” mantra: better to have system that makes “good” outcomes more likely, at the cost of perhaps occasionally thwarting the will of the people, than a perfectly democratic system that more routinely makes for “bad” outcomes.[2] In a recent article, Kavanagh reminds us of John Hart Ely’s proclamation that “we may grant until we’re blue in the face that legislatures aren’t wholly democratic but that isn’t going to make courts more democratic than legislatures” and then herself proclaims that “no matter how ingenious the various attempts are to reconcile constitutional judicial review with democracy, this [i.e. Ely’s] rejoinder is always possible…”[3]

I don’t agree with Kavanagh on the general point, as I outline in a forthcoming article in the International Journal of Constitutional Law.[4] Although it would of course be difficult to argue that courts are “more democratic” than legislatures, Ely’s line (as Kavanagh herself would acknowledge) is a little reductive. The important question in this context is what institutional relationship between courts and legislatures might best correspond with the ideal of democracy. If we reflect more carefully on that ideal – and come to appreciate the incoherence of the “one-person-one-vote” caricature that often prevails in respect of democracy, including in these academic debates – we can not only reconcile constitutional judicial review with democracy but see it (at least in a certain form) as among its important institutional requirements.

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Published on January 29, 2016
Author:          Filed under: Analysis
 

Reminder–Call for Papers–Global Symposium on Constitutional Amendment and Replacement in Latin America–University of Brasilia Law School, Brazil

University of Brasilia Law School

in collaboration with

Boston College Law School

and

Macquarie Law School

under the auspices of

The International Society of Public Law

invite submissions for

Symposium on Constitutional Amendment and Replacement in Latin America
University of Brasilia Law School
Brasilia, Brazil
September 29-30, 2016

The University of Brasilia Law School, Boston College Law School, Macquarie Law School, and the International Society of Public Law invite submissions for a two-day Symposium on constitutional amendment and replacement in Latin America, to be held on the campus of the University of Brasilia Law School on Thursday and Friday, September 29-30, 2016.

This Symposium is convened by Richard Albert (Boston College), Juliano Zaiden Benvindo (Brasilia) and Carlos Bernal (Macquarie).

Subject-Matter of Symposium

Latin American constitutions have endured both formal and informal changes with higher frequency than most if not all other regions of the world. Amendment, revision and replacement are ordinary events in the course of normal politics in Latin America, in contrast to the relative stability that characterizes many modern constitutions in North America and Western Europe. Indeed, nearly every Latin American constitution has been replaced or undergone a major constitutional amendment over the last three decades. This is often prompted by incumbents attempting to constitutionalize their program for governance, to confer upon themselves greater powers, to respond to judgments of the judicial branch, or more specifically to prolong their term in office.

This Symposium offers a space to discuss constitutional amendment and replacement in Latin America from comparative, doctrinal, empirical, historical, international, theoretical and other perspectives. It is also an opportunity to explore the richness and complexity of the vast topography of constitutional developments, experiments and perspectives in the region. Scholars will inquire into the forms, limits and justifications for amendment, revision and replacement of constitutions in Latin America and the distinctions among these categories of change. Scholars will also explore the evolution of constitutional identities in the region, how we should understand the people in the region as well as the implications of the forms constitutional change in Latin America for constitutionalism, democracy and human rights. 

This Symposium will feature papers on all questions related to constitutional change—from interpretation to revolution—in Latin America with particular attention to new developments, experiments, dilemmas, failures, achievements and open questions.

Eligibility

Submissions are invited from scholars of all ranks, including doctoral students.

Publication

The convenors intend to publish the papers in an edited book or in a special issue of a law journal. An invitation to participate in this Symposium will be issued to a participant on the following conditions: (1) the participant agrees to submit an original, unpublished paper of 8,000 to 10,000 words consistent with submission guidelines issued by the symposium convenors; (2) the participant agrees to submit a pre-Symposium draft by Monday, August 15, 2016; and (3) the participant agrees to submit a full post-Symposium final draft by Monday, November 21, 2016.

Submission Instructions

Interested scholars should email an abstract no longer than 750 words by Monday, February 8, 2016 to ryan.hynes@bc.edu on the understanding that the abstract will form the basis of the pre-symposium draft to be submitted by Monday, August 15, 2016. Scholars should identify their submission with the following subject line: “Brasilia—Abstract Submission—Amendment and Replacement.”

Notification

Successful applicants will be notified no later than Monday, March 7, 2016.

Costs

There is no cost to participate in this Symposium. Successful applicants are responsible for securing their own funding for travel, lodging and other incidental expenses. The University of Brasilia Law School will negotiate a special group rate for lodging, and will also provide meals and refreshments on the days of the Symposium.

Questions

Please direct inquiries in connection with this Symposium to:

Juliano Zaiden Benvindo
University of Brasilia Law School
juliano@unb.br

Carlos Bernal
Macquarie Law School
carlos.bernal-pulido@mq.edu.au

Richard Albert
Boston College Law School
richard.albert@bc.edu

About the University of Brasilia Law School

Established in 1962 as a public foundation funded by the Federal Government in the recently inaugurated capital of Brazil, the University of Brasilia (UnB) is the utopia of the Brazilian anthropologist and educator Darcy Ribeiro. Since its inception, the University of Brasilia has been committed to producing state of the art scholarship, promoting citizenship for the transformation of Brazil, and building a national reputation for excellence in research, teaching, and extension.

The University of Brasilia Law School, one of the first schools of UnB, tops the national rankings in both undergraduate and graduate levels. Situated in the capital of Brazil, the Law School is well-known as a center for excellence in the field of public law and its scholars are active participants in national debates and hearings in all public institutions. The Law School has one of the strongest contingents of full-time professors devoted exclusively to research, teaching, and extension, which creates a special environment of mutual cooperation, academic production, and learning. It is also one of the few Law Schools in Brazil which provides, annually, a specific call for Master and Doctoral foreign applicants, transforming its graduate Program into one of the most internationalized in Brazil. For more, please visit the UnB Law School website: http://www.direito.unb.br    

About the Macquarie Law School

When Macquarie Law School was established in 1972, it became the third oldest Law School in New South Wales, Australia. Since then, Macquarie Law School has made its mark in legal education: undertaking innovative research, fostering interdisciplinary approaches to the law, promoting social justice and enhancing understanding of fundamental legal rules and institutions.

Macquarie Law School is home to a number of innovative research centres that have set the standard for Universities across Australia. These include the Centre for Environmental Law—one of the first of its kind in Australia, which focuses on matters ranging from climate change, corporate social responsibility, to heritage, planning and local government law. Our Centre for Legal Governance brings together internationally-renowned scholars working in areas of law reform, social justice, international law and institutions, international trade law, and health law and bioethics.

Macquarie Law School’s researchers and academics are at the forefront of legal research and development; engaging with other researchers nationally and internationally, as well as with government, the profession, industry stakeholders, and community groups. These efforts directly benefit our students, permitting them insights into cutting-edge thinking throughout their studies and enhancing their abilities to think critically about the law’s interpretation and application.

About Boston College Law School

Founded in 1929, Boston College Law School offers broad course offerings and small class sizes that permit considerable personal interaction with faculty. The international and comparative law curriculum provides opportunities for in-class instruction, innovative and flexible study-abroad programs, and meaningful training in the field. Boston College Law School understands that globalization magnifies the scope and complexity of law and legal practice. The curriculum trains students for the needs of today, while giving them skills and perspectives that anticipate the needs of tomorrow. The program prepares leaders to pursue social justice not just nationally, but internationally as well. For more, please visit: www.bc.edu/law.

About The International Society of Public Law (ICON·S)

The International Society of Public Law (ICON·S) was officially launched in June 2014 at an Inaugural Conference sponsored by the European University Institute and NYU School of Law in Florence, Italy. The conference featured a keynote address by Jeremy Waldron, plenary papers by Robert Keohane, Ruth Rubio Marin and Joseph H.H. Weiler, and hundreds of participants in concurrent panels on all subjects in public law.

Presided by Sabino Cassese, ICON·S emerged from the Editorial Board of I·CON—the International Journal of Constitutional Law. For several years now I·CON has been, both by choice and by the cartographic reality of the field, much more than a journal of comparative constitutional Law. I·CON has expanded its interests, range of authors, readers, Editorial Board members and, above all, issues covered to include not only discrete articles in fields such as Administrative Law, Global Constitutional Law, Global Administrative Law and the like, but also increasingly includes scholarship that reflects both legal reality and academic perception, and which in dealing with the challenges of public life and governance combines elements from all of the above with a good dosage of political theory and social science. Learned societies have often been founded to validate the emergence, autonomy, or breakaway of an intellectual endeavor. By contrast, international learned societies are often driven by the realization of intellectual cross-fertilization that can stem from disciplinary ecumenism. ICON·S is both.

The ICON·S Executive Committee includes Sujit Choudhry, Gráinne De Búrca, Ran Hirschl, Bing Bing Jia, Susanna Mancini, Phoebe Okowa, Michel Rosenfeld, Ruth Rubio Marin, Hélène Ruiz Fabri, Anne van Aaken, and Joseph H.H. Weiler. For more information, please visit: http://icon-society.org/site/index.

About the Convenors

Richard Albert is an Associate Professor at Boston College Law School and, in 2015-16, a Visiting Associate Professor of Law and Political Science at Yale University. His research focuses on constitutional amendment, both formal and informal, from comparative, historical and theoretical perspectives. Since December 2014, he has been Book Reviews Editor for the American Journal of Comparative Law, which awarded him the Hessel Yntema Prize in 2010 for “the most outstanding article” on comparative law by a scholar under the age of 40. He is also an elected member of the International Academy of Comparative Law, an elected member of the Executive Committee of the American Society of Comparative Law, a member of the Governing Council of the International Society of Public Law, and a founding co-editor of I-CONnect, the scholarly blog of the International Journal of Constitutional Law. Prior to joining the faculty of Boston College Law School, Albert served as a law clerk to the Chief Justice of Canada and earned degrees at Yale, Harvard and Oxford

Juliano Zaiden Benvindo is Professor of Constitutional Law at the University of Brasilia, where he works as the Head of the Graduate Program in Law (Master and PhD). His main areas of research are in the fields of comparative constitutional law, constitutional theory, constitutional politics, and constitutional history. He holds a Bachelor of Law (2003) and a Master in Legal Philosophy (2005) from the University of Brasilia, and a PhD in Public Law from the Humboldt University of Berlin, Germany (2009). In 2013-2014, he worked as a postdoctoral visiting researcher at the Centre of European Law and Politics of the University of Bremen, Germany. He is the Editor-in-Chief of the University of Brasilia Law Journal (Revista Direito.UnB). He has published articles and books in Portuguese and English in distinguished journals, publishers, and academic blogs.

Carlos Bernal is an Associate Professor at Macquarie Law School (Sydney, Australia). He has research interests in the fields of constitutional comparative law, jurisprudence, and torts. He has published widely in all these fields in seven different languages. His qualifications include a LL.B. from the University Externado of Colombia (Bogota) (1996), a S.J.D. from the University of Salamanca (Spain) (2001) and a M.A. (2008) and a Ph.D. in Philosophy (2011) from the University of Florida (U.S.A). He has delivered guest lectures and presented papers in more than 20 countries.

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Published on January 28, 2016
Author:          Filed under: Developments
 

The Indian Supreme Court Declines to Revisit its Docket Crisis: The Most Important Recent Order That You’ve Never Heard of

–Rishad A. Chowdhury, J.S.D Candidate, The University of Chicago Law School

The Supreme Court of India’s (SCI’s) recent decision striking down the National Judicial Appointments Commission (NJAC) deservedly drew attention from those interested in Indian (and comparative) constitutional law. But in terms of true (potential) impact on the fundamental character of the SCI, even the NJAC case pales in comparison with an obscure Constitution Bench matter summarily disposed of by the Court earlier this month [Mathai @ Joby v. George & Anr SLP (C) No. 7105 of 2010]. While the Court’s order is not yet available online, its contents have been reported in the media.

On January 11, 2016, a Constitution Bench of five justices of the SCI (headed by Justice Anil R. Dave) disposed of a Special Leave Petition (SLP) referred to it by a Two-Judge Bench of the Court in March 2010. The matter came up before the Constitution Bench at short notice and was summarily dealt with; even close observers of the Court might be forgiven for failing to notice.

The Two-Judge Bench, while expressing its dismay about the flood of SLPs being filed before the SCI under Article 136 of the Constitution (most not even purporting to raise an unresolved question of legal interpretation), referred the matter to a Constitution Bench for ‘guidelines’ on the types of SLPs that are deserving of being entertained by the Court. While disposing of the matter earlier this month, the Constitution Bench observed that the law governing exercise of its discretionary jurisdiction is well-settled, and that it saw no reason to revisit it. Thus, the importance of this case is that the Bench was presented with an excellent opportunity to review not only the doctrinal principles concerning these petitions but also the underlying causes (whether doctrinal, institutional, or that of role-conception) of its docket crisis, and self-consciously declined to do so.

The Court’s disinclination to consider the matter in any depth is deeply puzzling. The docket crisis is one that each of these Judges, and Benches, are seeing – and struggling with – every single day. The SCI Annual Report for 2014-15 notes a growing backlog on account of the rapid increase in the number of filings: 76,917 matters were instituted in 2012, and 81,583 cases had already been filed in the calendar year 2014 up to November 30. The Court’s claim that the principles surrounding SLPs are satisfactorily settled is belied by its chronic struggle with its docket.

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Published on January 27, 2016
Author:          Filed under: Developments
 

What’s New in Comparative 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 U.S. Supreme Court declined to entertain a challenge to the Affordable Care Act that was premised on the claim that the legislation contravened the Origination Clause of the U.S. Constitution.
  2. A Constitution Bench of the Indian Supreme Court permitted an individual convicted in the “Red Fort Attack” in New Delhi to seek review of a death sentence.
  3. Zimbabwe’s Constitutional Court declared that persons who have not attained the age of 18 cannot marry.
  4. The Indian Supreme Court noted that it is the Union Government that possesses primacy in granting “minority status” to educational institutions.
  5. Italy’s Constitutional Court decided to permit a national referendum on the duration of oil and gas drilling concessions in the country.

In the News

  1. The United Nations Human Rights Committee announced that Peru has agreed to compensate a woman who was unlawfully denied access to abortion.
  2. U.S. President Barack Obama vetoed a congressional resolution that sought a withdrawal of the Waters of the United States Rule, which had enlarged the waters falling within the jurisdiction of the Environmental Protection Agency.
  3. In an effort to combat acid attacks, Colombian President Juan Manuel Santos enacted legislation to punish them strictly.
  4. The Egyptian Parliament passed legislation that allows law enforcement officers to use stringent measures to tackle terrorism.
  5. A Commonwealth Observer Group released a report recommending that Sri Lanka take steps to enhance women’s representation in Parliament.

New Scholarship

  1. Manoj Mate, India’s Participatory Model: The Right to Information in Election Law, 48 George Washington International Law Review (forthcoming) (evaluating the importance of the right to information in election law in creating an informed citizenry in India and explaining the lessons that the model holds for other countries)
  2. Philip Alston and Sarah Knuckey (eds.), The Transformation of Human Rights Fact-Finding (2016) (examining from a cross disciplinary perspective the importance of fact-finding for human rights studies)
  3. Jamie Cameron, Law, Politics, and Legacy Building at the McLachlin Court in 2014, 71 Supreme Court Law Review (2015) (assessing the broader impact of the leading decisions delivered by the Supreme Court of Canada under the leadership of Chief Justice McLachlin)
  4. Christopher Manfredi, Conservatives, the Supreme Court, and the Constitution: Judicial-Government Relations, 2006-15, 52 Osgoode Hall Law Journal (2015) (analyzing Canadian Supreme Court decisions and arguing that the relationship between the Conservative government and the Court from 2006 to 2015 was much more complicated than the “fractious relationship” narrative would suggest)
  5. Bianca Selejan Gutan, Informal Constitutional Changes in Romania, Romanian Journal of Comparative Law (2015) (examining the distinction between a formal and an informal transformation of constitutional law and assessing the informal factors that have played a key part in transforming Romanian constitutional law)
  6. Nadjma Yassari, Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law, 63 American Journal of Comparative Law 927 (2015) (arguing that the current state of opinion on adoption under Islamic law is based on a comparative analysis that fails to consider the changing nature and variety of adoption laws worldwide)
  7. Antonios E. Platsas, Enhancing the Cosmopolitan Element in the Law Curriculum: The Lessons of Comparative Law, in Legal Theory, Practice and Education (2016) (highlighting the fact that the subject of comparative law provides the basis for a cosmopolitan legal education)

Calls for Papers

  1. Organizers invite papers for the “Iceland Summit on International Law & Human Rights, 2016: Developing Initiatives to Implement Human Rights Legislation” to be held in Reykjavik, Iceland on April 27-29, 2016. The President of Iceland, and the Prime Minister of Iceland will be speaking at the Summit.
  2. Organizers have issued a call for papers for “The Legal Scholarship Workshop,” to be held at the Hong Kong University on May 26-27, 2016. Abstracts of papers should be submitted by March 6, 2016.
  3. The Human Rights Centre at Universidad de Chile invites papers for the 7th International Conference on Human Rights Education on “Addressing the Challenges of the Civil Society,” to be held at the Faculty of Law, University of Chile, on December 12-15, 2016. Paper proposals should be submitted by June 30, 2016.
  4. Consortium for Social Research on Turkey along with the Center for Policy and Research on Turkey and the Student Collective of Turkey are organizing a one-day conference on “Constitutional Politics in Turkey” at the New School for Social Research, New York on March 4, 2016. Interested participants are invited to submit abstracts of papers, which should be submitted by February 5, 2016.
  5. The ILS Law College invites papers for a conference on “Dialectics and Dynamics of Interface of Public Law in India” to be held on January 30-31, 2016.

Elsewhere on the Internet

  1. Virginia Mantouvalou, A Right to Change Employer for Overseas Domestic Workers, Oxford Human Rights Hub
  2. The Editorial Board, An Important Win in the Supreme Court for Class Actions, New York Times
  3. Trevor Timm, Journalism is not terrorism. Criticism of the government is not violence, The Guardian
  4. Ronald Mann, Opinion Analysis: Justices reaffirm limitations on ERISA plan’s right to recover medical-reimbursement costs, SCOTUSBlog
  5. Jacob Gershman, Immigration Case Latest Chapter of Congress v. Obama Saga, The Wall Street Journal Law Blog
  6. Pacifique Manirakiza,The Genocide Rhetoric in Burundi, JURIST
  7. Shawn Marie Boyne, Keeping an Arm’s Length, Comparative Law Prof Blog
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Published on January 25, 2016
Author:          Filed under: Developments
 

Symposium Report–Constitutionalism, Religious Freedom and Human Rights: Constitutional Migration and Transjudicialism beyond the North Atlantic

–Mirjam Künkler (Princeton University), Shylashri Shankar (Centre for Policy Research, Delhi) and Tine Stein (University of Kiel); Co-organizers for this Symposium held at Schloss Herrenhausen, Hanover, Germany, June 3-6, 2015, funded by the Volkswagen Foundation

Creating a framework of religion-state relations that would mollify tensions between religions, within religions, and between believers and non-believers, has been the bane of many a constitution-framer’s existence. And when issues pertaining to the ambit of religious freedom show up in the docket of the court, judges have struggled with interpreting these rights in a way that would create a fair trade-off between religious freedom and other human rights.  Given these challenges, constitutional framers and judges increasingly look abroad for orientation, both to be inspired as well as to learn from negative lessons.[1] As not much attention has been paid so far to the frameworks of religion-state relations that have migrated between constitutions and between courts, this conference set out to do so.

While laying out examples of where models of religion-state relations did travel, several panelists examined if this lead to an international convergence on prevalent models.

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Published on January 23, 2016
Author:          Filed under: Developments
 

As Jean-Louis Debré’s Term as President Comes to a Close—Whither the French Constitutional Council?

–Alyssa S. King, PhD Candidate in Law, Yale University; Resident Fellow at the Yale Law School Information Society Project

Jean-Louis Debré’s term as President of the French Constitutional Council is now coming to a close. The son of former Prime Minister Michel Debré, who drafted most of the Fifth Republic’s current constitution, was a successor to his father, both in his broad vision of institutional reform and in his pragmatic approach. Debré fils was one of the architects of the Council’s a posteriori review power through the “priority constitutional question” (abbreviated by French jurists as QPC), which took effect in 2010. Litigants may raise the QPC at any stage in their proceedings to challenge a law as unconstitutional, but they must give it this challenge priority over claims that the law violates rights protected internationally—notably by the ECHR and the EU Charter of Human Rights. QPCs are filtered through the Cour de Cassation, France’s supreme general court, and the Council of State, the supreme adminstrative court. Prior to the institution of the QPC, the Council could only review legislation a priori, after it was passed, but before it took effect, at the behest of the Parliament or the President. As I argue elsewhere, Debré and others pushed this change as a way to keep rights adjudication in the domestic sphere in the face of increasing Europeanization. However, the QPC also entails a profound reevaluation of the Council’s role—one the recent antiterror legislation is testing. Despite France’s historical fear that a posteriori review would abrogate Parliament’s power, the dynamics of the QPC may explain the Council’s recent deference on this and other issues.

The QPC has significantly expanded the Council’s caseload and its visibility.

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Published on January 20, 2016
Author:          Filed under: Analysis