magnify

I·CONnect

Blog of the International Journal of Constitutional Law

Constitutional Reforms in the Brazilian Constitution of 1988: Preservation Through Transformation?

[Editor’s Note: This is the fifth entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

–Vera Karam de Chueiri, Federal University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq); and Katya Kozicki, Federal University of Parana, Pontifical Catholic University of Parana, Center for the Studies of the Constitution (CCONS/PPGD/UFPR), National Council for Scientific and Technological Development (CNPq)

Brazil has a relatively new Constitution that is the outcome of a process of negotiated transition. We would rather refer to our constitutionalism from 1988 on as progressive and strongly committed to democratic procedures and democratic outcomes, but this is just part of the narrative. In the last four years it has been severely attacked. Since the impeachment of former president Dilma Rousseff in 2015, Brazilian democratic constitutionalism has faced great challenges and another narrative has started to be written.

Constitutionalism and democracy are two clashing commitments which entail a kind of paradoxical relationship in theoretical and practical terms and there is no big news on that. Yet the bad news is that constitutionalism and democracy and its unavoidable paradox have suffered serious offensives, naturally disrupting our traditional legal and political narrative. Given that narrative, our argument is that, until President Dilma Rousseff’s impeachment, constitutional changes replicated the struggle over the meaning of the Constitution that took place in the National Constituent Assembly of 1987-88. After the impeachment, it is difficult to find a standard for constitutional changes as far as the government is not accountable to a Constitution equally enforced, independently adjudicated and consistent with international human rights norms and standards.

One could identify a standard of constitutional changes from 1992 to 2014, which means a high number of amendments (eighty-four amendments) done by the legislative branch (Deputy’s Chamber and Senate) and a relatively high number of changes done by the Brazilian Federal Supreme Court (STF). The Brazilian Constitution has one of the highest amendment rates in the world (3.8 from 1992 to 2014). It sounds counter-intuitive for most constitutional scholars that a detailed and comprehensive constitution like ours with relatively strict rules of amendment (article 60) would change that much, but the phenomenon has been explained well by many political scientists.

Read the rest of this entry…

Print Friendly
Published on October 16, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional Law Professor at Universidad de La Sabana

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Peru annulled the presidential pardon granted to former President Alberto Fujimori in December 2017.
  2. The Supreme Court of Canada ruled that the decision by the Parliament of Quebec to fire three security guards is not protected by the principle of parliamentary immunity. As a consequence, the fired former employees can file a grievance against the legislature.
  3. The Supreme Court of India dismissed a claim seeking to declare full statehood for Delhi.
  4. The UK Supreme Court held that a bakery’s owners’ refusal –grounded on religious reasons– to bake a cake supporting same-sex marriage, did not constitute discrimination.
  5. The Supreme Court of India directed the government to respond a public interest litigation initiated against Johnson & Johnson for the sale of alleged defective hip implants.
  6. The Chief Justice of the Supreme Court of Pakistan, Saqib Nisar, asked the Capital Development Authority (CDA) to investigate the Prime Minister’s residence expansion in the wake of allegations of illegal constructions in the Bani Gala area.
  7. The Constitutional Court of Malta upheld a lower court’s ruling that removed Deputy Police Commissioner Silvio Valletta as investigator of the murder of the journalist Daphne Caruana Galizia, due to serious doubts upon his impartiality.
  8. The Court of Cassation of France requested an advisory opinion to the European Court of Human Rights on the scope of parental rights of a family whose children were born with the assistance of gestational surrogacy.
  9. The Supreme Court of Pakistan heard an appeal filed by Asia Bibi, the first Christian person sentenced to death under the recently passed law on blasphemy, and announced that it will make a decision in the forthcoming days or weeks.
  10. The Constitutional Court of Moldova declared that a ban that prevented people with intellectual disabilities from voting is unconstitutional.
  11. The Supreme Court of Canada concluded that the Federal Government does not have an obligation to consult indigenous peoples before introducing to Parliament a bill affecting these communities. Read the decision here.
  12. The Supreme Court of Chile upheld a decision issued by an environmental agency that ordered the closure of the water pumping wells used by Canada’s Kinross Gold Corp.
  13. The Supreme Court of Norway upheld the rights of a doctor who refused to practice an abortion procedure based on moral and conscience-related reasons.
  14. The Constitutional Court of Colombia maintained that municipal consultations cannot impede the implementation of mining or oil projects in the municipality’s territory.

In the News

  1. The Parliament of Finland is considering a constitutional amendment aimed at establishing an exception, grounded on national security reasons, to the right to privacy.
  2. Judge Brett Kavanaugh was sworn in as new Associate Justice of the US Supreme Court after a narrow confirmation vote by the US Senate.
  3. The Tokyo Metropolitan Government passed a law banning discrimination based on gender identity or sexual orientation.
  4. The Supreme Court of Hawaii is set to hear a challenge against an amendment to the state Constitution which seeks to increase taxes on investment properties.
  5. Diana Johnson, Labour MP, is planning to introduce a bill in the House of Commons seeking to decriminalize abortion in Northern Ireland.
  6. The Kenyan Parliament’s Budget and Appropriations Committee will review the financial implications of a constitutional amendment proposal which aims to reestablish, among others, the post of Prime Minister.
  7. The Liberal Democratic Party of Japan (LDP) is planning to introduce to the Diet some proposals to amend the Constitution, while the government of North Korea decried this move.
  8. The President of the Supreme Court of Ireland, Frank Clarke, called for more ‘direct dialogue’ between members of apex national courts across the European Union in order to facilitate the circulation of case-law-related information and to increase the ‘horizontal influence’ of domestic supreme courts.
  9. The implementation of the Indian Supreme Court’s decision that gave women access to Kerala’s Sabarimala Temple has been met with resistance coming from members from a conservative Hindu group. Meanwhile, several political parties have called for dialogue before implementing the ruling.
  10. The referendum that purported to amend the Romanian Constitution to define ‘family’ as the union between a man and a woman failed because it did not reach the minimum turnout threshold.
  11. Right-wing candidate Jair Bolsonaro won the first round of the Brazilian presidential election. A runoff between Bolsonaro and the second most-voted candidate (Fernando Haddad) will take place on October 28, 2018.
  12. In Philippines, the House of Representatives’ Committee on constitutional amendments approved a draft constitution that seeks to create a federal state.
  13. The Parliament of Iran passed a bill to combat terrorist financing amidst concerns about the stability of the nuclear deal still in force with several European and Asian nations.
  14. The President of Bangladesh, Abdul Hamid, signed the controversial Digital Security Act which has been criticized for its potential restriction of rights such as freedom of speech and press.
  15. The Government of Malaysia plans to introduce a proposal to amend the Constitution to increase judges’ retirement age from 66 to 70.
  16. The Government of Macedonia asked Parliament to vote on the constitutional amendment bill that seeks to change the name of the country to ‘Republic of North Macedonia’, after the referendum held on September 30 failed to get the minimum turnout and in order to be admitted as a NATO member.
  17. Mohamed Lamine Bangoura was appointed as new president of the Constitutional Court of Guinea.
  18. In the Netherlands, the Hague Court of Appeal held that the government must do more to reduce greenhouse emissions. Full English text of the judgement can be found here.
  19. Armenia has submitted a new Electoral Code proposal to the Venice Commission to know its views on the new Code.
  20. The Government of South Sudan is opposed to the creation of a war crimes court entitled to prosecute and punish war crimes committed during the five-year-long civil war.
  21. In Cameroon, the opposition presidential candidate, Maurice Kamto, declared himself winner of the recent presidential election.
  22. Andrzej Duda, President of Poland, appointed 27 new judges despite a judicial ruling that suspended any judicial nomination pending an opinion of the European Court of Justice.
  23. The former vice president of Guatemala, Roxana Baldetti, was sentenced to prison for committing corruption-related crimes.
  24. The Parliament of Tunisia passed an antidiscrimination law that prohibits and punishes racial discrimination.
  25. The leader of Peru’s political opposition, Keiko Fujimori, was detained over corruption allegations.
  26. The Chairman of the Constitutional Court of Russia, Valery Zorkin, argued for “drastic reforms” to the Russian Constitution. Namely, the Chairman advocated for more checks on power as well as for the protection of traditional Russian values against globalization.
  27. The Washington state Supreme Court held that the state’s death penalty laws are unconstitutional.
  28. The Government of Malaysia plans to abolish the death penalty and declared that it will halt all the pending executions.
  29. The Supreme Court of Philippines Justice Antonio Carpio warned that the Philippines’ unilateral withdrawal from the ICC jurisdiction could weaken his country’s position with respect to China.
  30. In the wake of the recent ICJ ruling, the President of Bolivia, Evo Morales, will send a letter to his Chilean counterpart to explore the possibility of establishing a binational dialogue to negotiate a Bolivian access to the Pacific Ocean.
  31. In Sri Lanka, the Parliament approved the nomination of non-members of Parliament to the Constitutional Council.

New Scholarship

  1. Kriszta Kovács & Kim Lane Scheppele, The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union, Communist and Post-Communist Studies (2018) (tracing what has happened to the judiciaries in Hungary and Poland, showing how courts have been brought under the control of political forces, and examining the role and attempts of the European Union to stop this crisis)
  2. Julian Rivers, The reception of Robert Alexy’s work in Anglo-American jurisprudence, Journal Jurisprudence. An International Journal of Legal and Political Thought (2018) (tracing the history and extent of Robert Alexy’s work’s reception on Anglo-American jurisprudence)
  3. Salvatore Bonfiglio, Intercultural Constitutionalism. From Human Rights Colonialism to a New Constitutional Theory of Fundamental Rights (2018) (arguing that the effective protection of fundamental rights in a contemporary, multicultural society requires an ethics of reciprocity and a pursuit of dialogue between different cultures of human rights, and advancing the notion of ‘intercultural constitutionalism’ as a concept able to meet this requirement)
  4. Anne Peters, Between military deployment and democracy: use of force under the German constitution, Journal on the Use of Force and International Law (2018) (analyzing how the German Constitution has tried to solve the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight)
  5. Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (2018) (providing a qualitative and quantitative examination of the use and non use by the UK Supreme Court of judicial decisions delivered by foreign national courts on human rights issues, and contending that the role of foreign precedents goes beyond what the expression ‘persuasive authority’ may imply)
  6. Mattias Kumm, Global constitutionalism and the rule of law, in Anthony F. Lang & Antje Wiener (eds.), Handbook on Global Constitutionalism (2018) (laying out the meaning of the idea of the Rule of Law in the constitutionalist tradition, and examining the challenges to its global consolidation)
  7. Nick W. Barber, The Principles of Constitutionalism (2018) (exploring how the principles of constitutionalism – sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society– structure and influence successful states)
  8. Jan Petrov, Unpacking the partnership: typology of constitutional courts’ roles in implementation of the European Court of Human Rights’ case law, European Constitutional Law Review (2018) (offering a typology of the roles played by constitutional courts in mechanisms of implementation of the European Court of Human Rights’ case law, and examining the conditions under which constitutional courts have the capacity to perform the roles listed in the typology and secure compliance with the European Court’s judgments)
  9. Santiago Virgüez, Congresspeople in the Courtroom: Analysis of the Use of Constitutional Complaints by Members of Congress in Colombia 1992-2015, Colombia Internacional, (2018) (explaining the reasons why congresspeople belonging to the majoritarian coalition challenge, before the Colombian Constitutional Court, the constitutionality of statutes enacted during their tenure)
  10. Giacomo Delledonne & Giuseppe Martinico (eds.), The Canadian Contribution to a Comparative Law of Secession. Legacies of the Quebec Secession Reference (2019 forthcoming) (reflecting on the landmark 1998 opinion of the Canadian Supreme Court concerning the secession of Quebec, and discussing its global influence)

Special Announcements

  1. The University of Oslo is pleased to announce the launch of a new book by Anine Kierulf on “Judicial Review in Norway – A Bicentennial Debate” on November 16, 2018. The program will feature remarks from Dag Michalsen, Dean of the Faculty of Law, and Tore Schei, former Supreme Court Justice.
  2. The Democratic Decay Resource (DEM-DEC) released the third monthly update of its bibliography on democratic decay (October 2018), containing new research worldwide from September 2018; key items from earlier in 2018 and late 2017; a significant list of items suggested by DEM-DEC users; and forthcoming research. A post introducing the Update was published on Verfassungsblog on 7 October.

Calls for Papers and Announcements

  1. iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen, invites applications for five fully-funded three-year PhD scholarships. The deadline for submissions is December 14, 2018.
  2. The Department of Political Science of LUISS Guido Carli calls for applicants who are interested in a two-year post-doctoral fellowship in Public Law on a project dealing with constitutional amendments -“Procedures for constitutional amendments: features, outcomes and consequences”. Applications must be submitted on line by November 5, 2018.
  3. Melbourne Law School welcomes applications for a PhD scholarship. Applicants should be qualified to work on any aspect of Indian equality or anti-discrimination law. Applications should be sent by November 2, 2018.
  4. European University Institute (EUI) calls for proposals for its forthcoming workshop on ‘Democratic Backsliding and Public Administration’, to be held from January 31 to February 1, 2019. Interested scholars should submit their proposals by October 19, 2018.
  5. The Central and Eastern European Regional Chapter of ICON-S welcomes submissions for its international Conference on ‘Traditional Concepts: New Perspectives, New Challenges’, which will take place on March 29, 2019 in Prague. Interested scholars should send their abstract proposals no later than November 15, 2018.
  6. The International Association of Constitutional Law (IACL) Research Group on “Constitutional Responses to Terrorism” calls for papers for its upcoming Annual Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law”, to be held on June 13-14, 2019, at Bocconi University. Interested scholars are invited to submit an abstract along with their CV by December 15, 2018.
  7. The National University of Singapore invites paper proposals for its 16th ASLI Conference about the ‘Rule of Law and the Role of Law in Asia’. This Conference will be held from 11 to 12 June 2019 at the Faculty of Law. Abstracts should be sent by December 3, 2018.
  8. The Max Weber Programme at European University Institute (EUI) convenes a workshop on ‘Global Justice and Populism’, and invites submissions from interested scholars. Abstracts must be sent on or before January 31, 2019.
  9. The City Law School at the City, University of London, convenes a workshop on ‘Justice, Injustice and Brexit’, which will take place on October 19, 2018. A programme for the event can be found here.
  10. The Democratic Decay Resource (DEM-DEC) will be formally launched on October 22, 2018 with a panel discussion and reception at the University of Melbourne. The panel discussion –titled ‘Is Democracy Decaying Worldwide? And What Can We Do About It?’– will provide an overview of democratic decay across the globe, with experts providing detail on four selected states. The full programme and details are on DEM-DEC.
  11. The British Institute of International and Comparative Law in association with Cambridge University Press convenes a workshop on academic publishing aimed at those starting out in an academic career. This event will take on November 14, 2018 at the British Institute of International and Comparative Law (London).

Elsewhere Online

  1. Samuel Moyn, Resisting the Juristocracy, Boston Review
  2. Alexandra Phelan & Raul Sanchez Urribarri, The Venezuelan crisis matters and there’s much we can do, ABC News
  3. Pauline Weller, “For the Court, it could be…”: Electing Constitutional Judges in the US and Germany, Verfassungsblog
  4. Jack Balkin, Constitutional Rot Reaches the Supreme Court, Balkinization
  5. Eugénie Mérieau, The Sixtieth Anniversary of the French Constitution: Toward the Death of the Fifth Republic? Verfassungsblog
  6. Yen-Tu Su, Taiwan is revolutionizing democracy, The Washington Post
  7. Rahul Bhatia, The Indian Government’s Astonishing Hunger for Citizen Data, The New York Times
  8. Agata Gostyńska-Jakubowska, New Approaches to Upholding Democratic Values in Poland, Carnegie Europe
  9. Tomasz Tadeusz Koncewicz, “Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect. The Polish Constitutional Court Then, Now and … Tomorrow, Verfassungsblog
  10. Başak Çali, The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey, EJIL: Talk!
  11. Alan Whysall, Challenges to good government in Northern Ireland: charting a future course, The Constitution Unit
  12. Meg Russell, Alan Renwick & Jess Sargeant, How and when might a second referendum on Brexit come about? The Constitution Unit
  13. Tom Gerald Daly, Searching for Democracy 2.0 without Losing Democracy 1.0, Pursuit
  14. Simson Caird, Taking Back Control: Brexit, Parliament and the Rule of Law, U.K. Const. L. Blog
  15. Charlotte Burns, UK & Devolved Governments Need to Cooperate on Environment After Brexit, Centre on Constitutional Change
  16. Marco Antonio Simonelli, Judicial Appointments in the Age of Trump – Are There Remedies for Polarization? IACL-AIDC Blog
  17. Julian O’Donnell, Are Victoria’s Safe-Access Zones Safe from the Constitution? AUSPUB Law
  18. Leighann Spencer, Should the ECtHR Consider Turkey’s Criminal Peace Judgeships a Viable Domestic Avenue? Verfassungsblog
  19. Adam Feldman, Empirical SCOTUS: What to expect from Kavanaugh’s first term, SCOTUSblog
  20. John Tasioulas, Are human rights anything more than legal conventions? Aeon
Print Friendly
Published on October 15, 2018
Author:          Filed under: Developments
 

Fake News, Backlash and the Rise of the German Populist Right – An Update on German Developments

–Michaela Hailbronner, Postdoctoral Fellow, University of Münster, Germany

In the last few years, foreign observers have increasingly looked to Germany and Angela Merkel as potential new leaders of the free world. Rich, democratic and equipped with a strong belief in the Rechtsstaat, Germany has seemed a bastion of liberal democracy at a time when others are increasingly in crisis.

The 2017 federal elections cast some shadows on this sunny picture. A new populist right-wing party, Alternative for Deutschland (AfD) won a substantial 13% of the vote. This ensured not only its representation in the federal parliament (clearing the five percent threshold for obtaining seats), but also made it the third strongest party in that body.

A year after the AfD’s entry into Parliament, how do things stand? Does the picture of Germany as a bastion above the crisis still hold?

I’m not here offering a comprehensive response. Instead, this is an update. I describe developments for those not closely observing the German case and attempt to connect the German to the broader global stories debated here and elsewhere.

First, what has happened since the 2017 federal elections?

Read the rest of this entry…

Print Friendly
Published on October 14, 2018
Author:          Filed under: Analysis
 

Presidentialism and the Crisis of Governance in Brazil

[Editor’s Note: This is the fourth entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Luiz Guilherme Arcaro ConciPontifical University of Sao Paulo

Brazil was the only American country that, once independent (1822), established a national monarchy that reigned for almost eighty years[1]. From the late 1840’s until the proclamation of the Republic (1889), there was also a parliamentary system in a unitarian country. Abruptly, with the proclamation of the republic in 1889, our leaders decided to replace the system of government to presidentialism and the unitary form of state by the federal one. All these changes in only one political transition.

The presidential system, then wrapped in high expectations, became more of the same. Too much personalism, little institutional resistance to the authoritarian impulses of the rulers, fragility of the institutions to control the presidential power (and the governors, at the state level). Alongside this reality, this first phase of the Brazilian Republic (1889-1930) was marked by a standardized set of electoral frauds[2] throughout the territory that only reinforced the same regional oligarchies in power, with little porosity to substitution and popular participation, in spite of the increase of the contingent of voters occurred with the end of the census vote existing during the Empire (1822-1889) and abolished with the Constitution of 1891.

In the course of the 20th century, there were long periods of deepening authoritarianism (1937-1945 / 1964-1985), followed by other short terms of re-democratization (1946-1964 / 1985 onwards), indicating a dynamic pendulum that made it difficult to consolidate a true democratic environment settled by constant free electoral processes ruled by the law and not by the expectation of the powerful groups fighting for the maintenance of power.

With our last Constituent Assembly (1987-1988) the expansive impetus of presidential personalism was maintained and, paradoxically, increased. Some centralizing features established by the military dictatorship[3] were maintained in the constituent debates for the ”new” presidentialism. The President of the Republic, with the new Constitution, gained more power, as we will see, even for the role of defining the political agenda of the National Congress.[4]

Read the rest of this entry…

Print Friendly
Published on October 14, 2018
Author:          Filed under: Analysis
 

Brazilian Federalism and Asymmetries on the 30th Anniversary of the 1988 Constitution

[Editor’s Note: This is the third entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Marcelo Labanca Correa de Araujo, Catholic University of Pernambuco

The historical formation of the Brazilian State has much to do with processes of centralization and political-territorial decentralization. Initially, as a colony of Portugal during the sixteenth to nineteenth centuries, Brazilian territory was divided into hereditary captaincies that were nothing more than a territorial division of power administration. Even in the colonial period, the tension between the rules of the Portuguese crown and the clamor for more local autonomy led to the emergence of revolutionary movements considered by many as “Republicans” but which, in fact, also had federalist aims. For example, the Pernambuco Revolution of 1817, which for a short period of almost three months expelled the Portuguese from a part of the Brazilian territory, formed a republican government. Based on a fundamental organic law, it established the separation of powers and provided for rights and guarantees such as freedom of the press and the irremovability of judges. The revolution of 1817 had a flag with three stars representing the States of Pernambuco, Paraiba and Rio Grande do Norte, as a kind of recognition of the idea of union in diversity.

Even when Brazil became independent of Portugal, inaugurating the monarchy represented by Emperors Pedro I and Pedro II, the unitary state that existed (centralized, of course) also coexisted with the existence of subnational entities that grouped power in populations. The first Brazilian constitution (which dates back to 1824) set out provinces as an element of the territorial distribution of political administration (although lacking in autonomy). These territorial subdivisions suggest that gradually a sense of belonging to the people who inhabited the provinces of each subnational entity had been forming. People from the provinces nowadays called Pernambuco, Rio de Janeiro, São Paulo and other subnational entities recognized themselves as members of the same group and also as different from the inhabitants of other provinces, creating the human element that in the future would give support for the formation of states. Thus, if it is true that federalism is not the same as a federal state (which would be its “constitutionalization”), it is also true that Brazilian federalism did not expect to be formalized by a constitutional text. In fact, there are many examples of processes that were directed towards a federalist path even when the unitary monarchical state was still in force.[1]

Read the rest of this entry…

Print Friendly
Published on October 13, 2018
Author:          Filed under: Analysis
 

ICON-S Council Elections—Call for Nominations

–Lorenzo Casini and Rosalind Dixon, Co-Presidents, ICON-S

To the ICON-S Community:

The state of the Society is strong, and a major reason why is our active and engaged membership.

We are pleased to announce plans to continue renewing the Society’s Council with an infusion of new members directly elected by our membership. The 2018 ICON-S Council elections will follow our inaugural elections held last year in 2017, when the Society’s membership elected eight (8) new Council members.

This year we will invite the membership to elect six (6) new Council members, each to serve a three-year non-renewable term.

The 2018 ICON-S Council elections will proceed in two phases: first, nomination; and second, election.

We are writing now to invite you to nominate suitable candidates for Council membership. Membership on the Council is a position of high distinction, entailing responsibility for the intellectual guidance of the Society, advising the Executive Committee, and representing the interests of the membership.

More information about the Society’s governing bodies, including the existing membership of the Council can be viewed here: https://icon-society.org/governance.

Nominations should be submitted via email to ICON-S at the following email address no later than October 25, 2018, 10pm GMT: icons@icon-society.org.

Nominations should include the nominee’s name, academic title, institutional affiliation, history of participation in and involvement with ICON-S, and a weblink to a CV or profile. Self-nominations are welcome.

Nominations will be reviewed by the Executive Committee by November 5, 2018, and the names selected will then be submitted to the entire membership of the Society for electronic voting.

Elections will be held online from December 1, 2018 to December 11, 2018, following the same electoral procedure used in 2017:

  1. Voting will open to the entire ICON-S membership on December 1, 2018 at 12pm GMT and will close on December 11, 2018 at 10pm GMT.
  2. Each member of the Society may vote only once for up to six (6) of the candidates on the list of candidates.
  3. To promote regional diversity consistent with the Society’s mission to be open to all, each member may vote for up to but no more than two (2) candidates from institutions based in the same country.
  4. To promote balanced gender composition consistent with the Society’s recognition of the importance of diversity—a principle approved by the Executive Committee and Council at the 2016 annual meeting—each member may vote for up to but no more than three (3) candidates of each gender.
  5. Any vote inconsistent with any of these conditions will be void.
  6. Following the voting period, the list of successful candidates will be approved by the Society’s Executive Committee, and the results will be announced shortly thereafter.

We thank you for your enthusiastic support of the Society, and we look forward to continuing to build the Society consistent with our mission.

Print Friendly
Published on October 12, 2018
Author:          Filed under: Developments
 

The Challenge of Interpretation and the 1988 Brazilian Constitution

[Editor’s Note: This is the second entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Gustavo Ferreira Santos and João Paulo Allain TeixeiraCatholic University of Pernambuco, Federal University of Pernambuco, and National Council for Scientific and Technological Development  (CNPq)

Brazil enacted a new constitution in 1988, looking for inspiration in post-war Europe, in particular the experiences of Portugal and Spain. These are both young democracies which once endured many years of authoritarian rule. However, there was still no consistent debate among lawyers and scholars as to how to bring the new Constitution into full effect. In fact, constitutional law was still marked by the consequences of an extended dictatorial past – that lasted more than twenty years-, in which the constitution itself held a very low legal status.

This is evident from a brief perusal of the first books dedicated to commenting on the new Constitution. Authors such as Ives Gandra da Silva Martins, Celso Ribeiro Bastos, José Cretella Jr., and Manoel Gonçalves Ferreira Filho interpreted the new text under the influence of previous experience. This ‘rearview mirror’ kind of interpretation can also be seen in the first rulings of the Brazilian Supreme Court (STF).

A gradual shift, however, was underway in discussion of the Constitution. The influence of European constitutional thought in the second post-war period had grown. Some constitutional scholars, such as Paulo Bonavides and José Afonso da Silva, already reflected this trend in their academic works. Younger constitutional lawyers accelerated the process. Suddenly, the debate was flooded by a set of institutes and concepts built in European jurisdictions. Friedrich Muller, Peter Häberle, Konrad Hesse and Robert Alexy (Germany), Gustavo Zagrebelsky and Luigi Ferrajoli (Italy), Pablo Lucas Verdu, Antonio Enrique Pérez Luño and Gregorio Peces-Barba (Spain) and José Joaquim Gomes Canotilho and Jorge Miranda (Portugal), for example, were very common bibliographic references in this debate. Some English-speaking authors, such as Ronald Dworkin, were also cited.

Under these circumstances, therefore, the debate over the Brazilian constitution was strongly influenced by countries with well-established constitutions, such as those in Europe and the United States. Many new methods of interpretation and judicial decision-making techniques were developed and applied. Constitutional law was characterized by topics such as the weighting of principles, proportionality test, the enforcement of fundamental rights in private relations and interpretation of statutes “according to the Constitution.”  Such topics were usually associated with “neo-constitutionalism”[1], considered to be an innovative and anti-formalistic approach to Constitutional Law.

Read the rest of this entry…

Print Friendly
Published on October 11, 2018
Author:          Filed under: Analysis
 

Between Past and Future: The 30 Years of the Brazilian Constitution

[Editor’s Note: This is the first entry in our symposium on the “30th Anniversary of the Brazilian Constitution.” The introduction to the symposium is available here.]

Cristiano Paixão and Paulo Blair,University of Brasília

Constitutions exist in time. Not only the the linear count of the days, months and years in which they seek to provide a legal and political regulation to the society. Constitutions are made of memories, traumas, projections and expectations. Constitutional documents deal with past experiences and fears that address the future. Although bound to the present time, they are marked by these temporal inflections. Between activating memory and articulating projects, Constitutions aim to link time itself.

In the Brazilian case, this articulation between past, present and future is directly associated with the dynamics of political changes. In this sense, Brazil is a true laboratory of constitutional experiences.

In less than two centuries, Brazil produced seven constitutions. A significant finding in Brazilian constitutional history is the relationship between political change and the elaboration of a constitution. There is a direct correspondence between the transformations of the political regime and the emergence of a constitution. As soon as Brazil became an independent nation, the Constitution of 1824 was granted, which made the option for a unitary state and the monarchical form. With the fall of the monarchy and the subsequent transformation of the regime into a republic, the 1891 Constitution emerges strongly influenced by the United States Constitution (with its federalism, bicameralism, Supreme Court with life judges appointed by the President of the Republic and approved by the Senate). A Revolution broke out in November 1930, with a change in the relationship between central power and local leaderships and the beginning of a modernization project, still within the framework of liberalism (combined with some state intervention in the economy) and democracy. The Constitution of 1934, drafted by a Constituent Assembly, is the political and legal document that sought to confer durability and stability to this new state organization. But the troubled 1930s would still see the emergence of a new constitution. The brief democratic experience came to an end with the self-inflicted coup d’etat triggered by Getúlio Vargas with the support of sectors of the military. On the same day that the closing of the National Congress was decreed, a Constitution was also granted. Thus, on November 10th, 1937, Brazil became governed by a constitution imposed by Vargas and, as might be expected, this same Constitution provides for the Executive Power to lead the process of modernization of the country.

Read the rest of this entry…

Print Friendly
Published on October 10, 2018
Author:          Filed under: Analysis
 

Introduction to I-CONnect Symposium: 30 Years of the 1988 Brazilian Constitution

[Editor’s Note: I-CONnect is pleased to feature a one-week symposium on the 30th anniversary of the Brazilian Constitution. We are grateful to our conveners, Professors Glauco Salomão Leite and Juliano Zaiden Benvindofor assembling an outstanding group of scholars to explore this pivotal and turbulent moment in Brazilian constitutionalism.]

Glauco Salomão Leite, Catholic University of Pernambuco and University of Pernambuco & Juliano Zaiden Benvindo, University of Brasilia and National Council for Scientific and Technological Development (CNPq)

The Federal Constitution of Brazil of 1988 celebrates its 30th anniversary exactly at the moment where Brazilian democracy is under extreme stress and the prospects about the future are possibly more uncertain than any other period since the transition to democracy in 1985. The temporal coincidence says a lot about how Brazilian society has dealt with its past and also about how it has envisaged its future since that constitutional moment. The first round of the national elections took place on October, 7th, and the outcome is worrisome: the far-right candidate Jair Bolsonaro reached 46% of the votes against 29% of Fernando Haddad, the moderate left-wing candidate from the Worker’s Party. The run-off is scheduled to take place on October 28th in an environment that is marked by the rise of a social backlash against the political system and the traditional politicians themselves. The new Congress elected is the most conservative ever since the transition to democracy and fragmentation, which was already one of the most significant in the world, has become even stronger. All this scenario is the outcome of the political polarization that has gained momentum following the political crisis that has afflicted the country since 2014, when President Dilma Rousseff was impeached based on flimsy and controversial reasons. In the middle of such crisis and the serious risks for Brazilian democracy, the meaning of the 1988 Constitution and its importance as a symbol of Brazil’s transition to democracy have become more fundamental than ever.

To discuss this moment, and its importance to comparative studies, we gathered prominent scholars from distinct universities in Brazil to participate in this symposium for I-CONnect and to contribute with analyses of some central subjects that have shaped the Brazilian constitutional life. They are:

  1. Between Past and Future: The 30 Years of the Brazilian Constitution – Cristiano Paixão and Paulo Blair
  2. The Challenge of Interpretation and the 1988 Brazilian Constitution – Gustavo Ferreira Santos and João Paulo Allain Teixeira
  3. Brazilian Federalism and Asymmetries – Marcelo Labanca
  4. Presidentialism and Crisis of Governance – Luiz Guilherme Arcaro Conci
  5. Constitutional Reforms in the Brazilian Constitution of 1988: Preservation Through Transformation? – Vera Karam de Chueiri and Katya Kozicki
  6. What Do “Constitutional Reforms” in the 30th Anniversary of the Brazilian Constitution Really Mean? – Estefânia Barboza and Melina Fachin

Read the rest of this entry…

Print Friendly
Published on October 9, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Guatemala rejected two requests for annulment submitted by the executive branch.
  2. India’s Supreme Court ruled that women can no longer be barred from entering one of the holiest temples in the country.
  3. The International Court of Justice ruled that Bolivia cannot force Chile to grant it access to a portion of the Pacific Ocean.
  4. The Spanish Supreme Court upheld a prison conviction against the former International Monetary Fund chief and deputy prime minister of Spain.
  5. The Court of Appeal of Quebec ruled that religious dress is to be allowed in the courtroom.
  6. The U.S. Supreme Court started to hear arguments in a case regarding whether state and local government employers with less than 20 employees are exempt from the restrictions imposed by the Age Discrimination in Employment Act.
  7. The US Court of Appeals for the Ninth Circuit ruled that refusal to run anti-terrorist bus ad is unconstitutional.

In the News

  1. In Mexico, Lawmakers submitted a constitutional reform bill for consideration.
  2. Former Namibian presidents called for a referendum to amend the Constitution.
  3. The Libyan House of Representatives passed a new constitution referendum law.
  4. The British Prime Minister announced that new visa restrictions are to be considered.
  5. The U.S. administration began implementing new policy regarding denying entry visa to unmarried, same-sex partners of foreign diplomats and employees of the UN.

New Scholarship

  1. Oğuz Kaan Pehlivan, Confronting Cyberespionage Under International Law (Routledge 2018) (addressing domestic and international legal tools appropriate to adopt in cases of cyberespionage incidents)
  2. Leila Nadya Sadat, Seeking Accountability for the Unlawful Use of Force (Cambridge Univ. Press 2018) (examining the many systems and accountability frameworks which have developed since the Second World War and suggesting new avenues for enhancing accountability structure)
  3. Tom Sparks, Protection of Animals through Human Rights: The Case-Law of the European Court of Human Rights, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018-21 (discussing the potential of a human rights framework to contribute to the growth and development of global animal law)
  4. Thomas H. Lee, The Law of Nations and the Judicial Branch, 106 Georgetown Law Journal (2018) (explaining what the law of nations meant at the time the United States was established and how it interacted with the original U.S. Constitution)
  5. Charles Ngwena, “What is Africanness?” Contesting nativism in race, culture and sexualities (Pretoria University Law Press (PULP), 2018) (offering an alternative liberating and decentred understanding of Africa as the land of diverse identifications)
  6. Joanna N. Erdman and Brooke R. Johnson Jr., Access to knowledge and the Global Abortion Policies Database, 142 International Journal of Gynecology and Obstetrics (2018) (arguing how the newly launched Global Abortion Policies Database could help in providing transparency and accountability)
  7. Melissa Upreti and Jihan Jacob, The Philippines rolls back advances in postabortion care policy, 142 International Journal of Gynecology and Obstetrics (2018) (discussing the Philippian postabortion care policy that rolls back crucial safeguards aimed at protecting women who seek medical treatment for postabortion complications from discrimination and abuse)
  8. Alyson Zureick, Amber Khan, Angeline Chen and Astrid Reyes, Physicians’ Challenges under El Salvador’s Criminal Abortion Prohibition, 143 International Journal of Gynecology and Obstetrics 143 (2018) (providing a crucial analysis to Salvador’s criminal abortion law)

Call for Papers and Announcements

  1. The Boston College Law School, with support from the Institute for Liberal Arts Submissions are invited from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019
  2. The student chapter of the American Constitution Society at Barry University School of Law and Texas A&M University School of Law are hosting the Fourth Annual Constitutional Law Scholars Forum at the Dwayne O. Andreas School of Law Campus on March 1, 2019.
  3. The Wijnhaven Campus of Leiden University invites submissions for a conference under the theme of Global Human Rights at Risk? Challenges, Prospects, and Reforms to be held on June 6-7, 2019.
  4. The Jindal Global Law Review (JGLR) is inviting papers for a special issue on Women and Law in South Asia.
  5. The Indian Constitutional Law Review welcomes submissions for its new volume.
  6. The Católica Law Review has issued a call for submissions for its new volume.
  7. The University of Oxford Faculty of Law is seeking a Programme Research Officer who will be responsible for day-to-day management of the Swiss Re-EJF Research Programme on Civil Justice Systems at the Centre for Socio-Legal Studies.
  8. The Faculty of Law, University of Copenhagen, advertises one or more positions as Assistant Professor of Law or a closely related research areas.

Elsewhere Online

  1. Elisha Kunene, Fill The Court: South Africa’s Constitutional Court and its continuity crisis, DailyMavrick
  2. Martín Tanaka, The Drive to Reform Peru’s Judicial and Political System: Opportunistic and Incompatible?, ConstitutionNet
  3. Macedonia Referendum: What’s in a Name?, The New York Times
  4. M. Trunji, The process of drafting the 1960 Somali Constitution: A short note, ConstitutionNet
  5. Ming-Sung Kuo, The Two Faces of Constituent Power, IJCAL
  6. Michael Hein, A Constitutional Ban on Same-sex Marriage: Romania is About to Entrench its Homophobic Worldview, Constitution Making & Constitutional Change
  7. Scott Bomboy, A tale of two crosses at the Supreme Court, Constitution Daily
Print Friendly
Published on October 8, 2018
Author:          Filed under: Developments