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I·CONnect

Blog of the International Journal of Constitutional Law

Article Review: Rajesh K. Reddy on Jessica Eisen’s Animals in the Constitutional State

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Rajesh K. Reddy reviews Jessica Eisen’s article Animals in the Constitutional State, which appears in the current issue of I•CON. Eisen’s full article is available for free here.]

Rajesh K. Reddy, Interim Director, Animal Law LL.M. Program, Lewis & Clark Law School

It is no longer a given that animals should be invisible to constitutional law. Indeed, their interests are currently contemplated in the constitutional frameworks of at least eight countries. The existence of animal legal protections at the constitutional level may strike some scholars as curious, even counterintuitive given the historical understanding of constitutions as guarantors of human rights and human interests, including the interest in chattel property, a legal category into which animals still fall. But society’s growing appreciation of animal sentience, part and parcel of the recent “animal turn,” has produced a more nuanced view regarding animals’ intrinsic moral status and thus helped to reshape this paradigm. In charting the emergence and development of these constitutional considerations, Jessica Eisen’s “Animals in the Constitutional State” contributes to the growing discourse around the ability of traditional theories of constitutionalism to contemplate the interests of animals before proposing an alternative framework grounded in the ideal of protecting the state’s most vulnerable members.

Before advancing this vulnerability-based paradigm, Eisen first surveys existing constitutional animal protections in Switzerland, India, Brazil, Slovenia, Germany, Luxembourg, Austria, and Egypt. Eisen not only deconstructs these provisions themselves but also tracks the histories of their enactment and analyzes judicial determinations that have limited, refined, and in some instances expanded their scope. The purpose of this assessment is to identify and isolate the ethical and cultural values that led to the creation of these novel provisions. To this end, Eisen proposes five categories: human experientialism, or the human interests in advancing animal protections, such as ensuring their existence for future generations; animal experientialism, anchored in the recognition of animal sentience and the attendant desire to prevent suffering; deontology; human virtue; and minority oppression, which seeks to curtail the economic utilization of animals by minority groups. While Eisen treats these as distinct categories, she emphasizes how more than one value often serves as the inspiration for animals protections. For instance, as an example of Islamic-inspired deontology, Eisen points to Article 45 of Egypt’s constitution, which reads that the state shall provide for “the kind treatment of animals.” In her discussion of the article’s enactment, Eisen is careful to observe that the provision also enjoyed the support of advocates concerned with the link between human and animal violence, the argument being that by curtailing violence against animals, violence against humans would also witness a decline. As such, Egypt’s provision also proves to be buttressed by human experientialist concerns. Time and again, what Eisen reveals to readers unfamiliar with the nascent field of animal law are the overlapping, and oftentimes competing, interests that drive animal protection laws.

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Published on February 20, 2018
Author:          Filed under: Reviews
 

Je Suis Achbita! (I·CON Volume 15, Issue 4: Editorial)

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

Editorial: Je Suis Achbita!

Achbita, decided in March 2017 is not a run of the mill case. It raised what I think are hugely difficult conceptual legal issues. It also comes at a delicate moment in the social and political life of Europe, where the Court of Justice of the European Union is an important actor in shaping the climate and defining the moral identity in and of Europe. I do not believe the Preliminary Ruling of the ECJ comes even close to what one may expect from the supreme judicial voice of justice of our Union in a case of this nature.

The case concerned, as you will know, a Muslim woman whose employer insisted in the name of a neutrality policy of the Company that she may not wear the hijab (a head scarf) to work, and thus she lost her job. I think it is a fair reading of the ruling sent back to the referring Belgian Court that other than checking that the company, without overly burdening itself, could not find a place for Achbita in a back office which would not bring her into contact with the public, the Court had no major problems with the company’s policy compliance with the specific Directive bringing the case within the jurisdiction of European Law and the overriding human rights controlling norms such as the ECHR and the EU Charter of Fundamental Rights.

I will present the case, for reasons which I will explain below, with a slightly different factual matrix.

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

Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law (University of Trento)

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 Lybia declared that administrative courts lack jurisdiction over Constitutional Drafting Assembly (CDA) matters, thereby paving the way for drafting a new constitution.
  2. The ECHR condemned Spain for “inhuman and degrading treatment” of an ETA prisoner.
  3. The ECHR confirmed the compatibility with the Convention of a criminal conviction for hate speech of a citizen of Bosnia and Herzegovina.
  4. The Supreme Court of the United States gave the green light for the Pennsylvania congressional redistricting plan to proceed.
  5. The Supreme Court of Brazil rejected a lawsuit aimed at limiting land rights of quilombolas (former slave communities).
  6. The Constitutional Court of Romania struck down the law allowing the selection of managers in state-owned companies though political criteria.
  7. The Supreme Court of Canada reverses a court order to remove online content published before a publication ban was ordered.
  8. The High Court of Kenya holds that Coca Cola should provide nutritional information on its food labels.

In the News

  1. Cyril Ramaphosa has been sworn in as South Africa’s new president, following Jacob Zuma’s resignation.
  2. Ecuador reinstated presidential term limits.
  3. The Pakistan government drafted a constitutional amendment bill authorizing congressional appointment and removal of judges in the superior judiciary.
  4. Bermuda has passed legislation reversing the Supreme Court’s decision recognizing same-sex marriage in the country.
  5. A second federal court temporarily blocks the rescission of DACA.
  6. Four survivors of the church massacre in Liberia brought a civil suit in the US against the alleged perpetrator.
  7. Italy’s high administrative court ruled that running a degree course exclusively in English violates the primacy of the Italian language and the freedom to teach.
  8. North Carolina violated civil rights law by forcing a magistrate to resign over her objection to perform same-sex marriages.
  9. A Germany Regional Court ruled that Facebook’s use of personal data is illegal.
  10. The High Court of Zimbabwe lifted the ban on an acclaimed documentary film.

New Scholarship

  1. Steven G. Calabresi et al., Individual Rights Under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States, Northwestern Law & Econ Research Paper No. 18-02 (2018) (analyzing in historical perspective the individual rights protected under state constitutions in the United States)
  2. Allan R. Brewer-Carías and Carlos García-Soto (Eds.), Estudios sobre la Asamblea Nacional Constituyente y su inconstitucional convocatoria en 2017 (Editorial Jurídica Venezolana, 2017) (gathering essays arguing for the unconstitutionality of the current National Constituent Assembly in Venezuela)
  3. Grainne De Burca, Is EU Supranational Governance a Challenge to Liberal Constitutionalism? University of Chicago Law Review (Forthcoming) (inquiring into whether EU’s supranational form of governance fueled the rise of authoritarianism in Europe)
  4. Alon Harel & Adam Shinar, The Real Case for Judicial Review, in Erin Delaney & Rosalind Dixon (eds.), Elgar Research Handbook on Comparative Judicial Review (forthcoming 2018) (testing one of the justifications for judicial review, namely it facilitates the hearing of grievances)
  5. Rass Holdgaard, Daniella Elkan & Gustav Krohn Schaldemose, From cooperation to collision: The ECJ’s Ajos ruling and the Danish Supreme Court’s refusal to comply, 55 Common Market Law Review (2017) (examining the recent clash between the ECJ and the Danish Supreme Court over the Ajos case, and explaining what led the Danish Supreme Court to refuse to comply with the ECJ judgment)
  6. Gillian E. Metzger & Kevin M. Stack, Internal Administrative Law, 115 Michigan Law Review (2017) (offering a conceptual and historical account of the role of internal norms and structures in controlling agency action in the United States)
  7. Valérie Verbist, Reverse Discrimination in the European Union: A Recurring Balancing Act (Intersentia, 2017) (examining reverse discrimination from a EU law perspective and under the laws of five member states)

Calls for Papers and Announcements

  1. The University of Bologna is inviting applications for the Summer School “Methodology of comparative law. Constitutional, Transnational and Political Justice Models,” which will take place in Bologna, Italy, on July 2-6, 2018.
  2. The ICRC Delegation in Washington, and faculty from Cardozo, Stanford and Loyola Law School welcome submissions for the 3rd annual workshop “Revisiting the role of international law in national security,” to be held in New York, on June 18th, 2018.
  3. The Stanford Program in Law and Society issued a call for papers for the 5th Conference for Junior Researchers to be held on May 11-12, 2018. The theme for the 2018 conference is ‘Law in Everyday Life.’ Deadline to submit abstracts: February 5, 201
  4. The American University – Washington College of Law invites applications for its Program of Advanced Studies on Human Rights and Humanitarian Law, to be held in Washington D.C., from May 29 to June 15, 2018.
  5. The Information Law Institute at NYU is accepting applications for research fellowships to begin in Fall 2018. Applications received on or before February 20 will be given priority.
  6. The Faculty of Law, Economics and Finance of the University of Luxembourg has an opening for a Doctoral candidate in EU public law and/or comparative administrative law. The deadline for applications is March 31, 2018.
  7. The University of Aberdeen, in collaboration with the Horizon 2020 Marie Skłodowska-Curie programme, is offering six Early Stage Researcher (PhD) positions, lasting 3 years starting in September 2018, for ground-breaking research on how political concepts are used in the world. Applicants researching on the concept of constitutionalism are especially welcome.
  8. The University of Oxford, Faculty of Law and St Peter’s College is offering an Associate Professorship of Public International Law. The closing date for applications is February 22, 2018.
  9. The American Society of International Law has launched a call for volunteers (current law student or young professional within three years of graduation) for the ASIL 2018 Annual Meeting, to be held in Washington, DC from April 4-7, 2018.

Elsewhere Online

  1. David R. Cameron, German parties negotiate a coalition agreement. But will the SPD members say yes?, Yale MacMillan Center
  2. Donal Coffey, Does UK Law Require a Referendum on the EU Withdrawal Agreement?, European Futures
  3. Grietje Baars, Symposium on the Third Option: ‘Not Man, Not Woman, Not Nothing’: ‘The Politics of Recognition and Emancipation Through Law’, Blog of the IACL, AIDC
  4. Michael Henry Ll. Yusingco, Diagnosing pathologies in the 1987 Philippines Constitution, BusinessWorld
  5. Bob Morris, The Crown: What does Netflix’s dramatisation and the celebritisation of an evolving monarchy mean for the royal family in 2018?, The Constitution Unit
  6. 9 Important Constitutional Amendments That Changed the Course of India, The Better India
  7. Alina Cherviatsova, Memory Wars: The Polish-Ukrainian Battle about History, Verfassungsblog
  8. Marko Milanovic, A Lot of Activity in the Inter-American Court, EJIL Talk!
  9. Julia Lowis, Establishing a breach of Article 3 in medical cases: The ‘applicability’ of Strasbourg jurisprudence (update), OxHRH Blog
  10. Bill Perry & Adams Lee, China Targets US Sorghum in Latest Trade Spat, China Law Blog
  11. Jonathan H. Adler, Why FDA regulations limiting e-cigarette marketing may cost lives and violate the Constitution, The Volokh Conspiracy
  12. Colin PA Jones, A year in the (short) life of Japan’s Cabinet, The Japan Times
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Published on February 19, 2018
Author:          Filed under: Developments
 

ICON’s Current Issue (Table of Contents)

Volume 15 Issue 4

Table of Contents

Editorial

Honor Roll of Reviewers 2017

Articles

Jessica Eisen, Animals in the constitutional state

William Partlett, The American tradition of constituent power

Rosalind Dixon and Tom Ginsburg, The forms and limits of constitutions as political insurance

Elisa D’Alterio, Integrity of the public sector and controls: A new challenge for global administrative law?

Tony Prosser, Constitutions as communication

Symposium: Federalism and rights:

Europe and the United States compared

Thomas Kleinlein and Bilyana Petkova,  Federalism, rights, and backlash in Europe and the United States

Aida Torres Pérez, The federalizing force of the EU Charter of Fundamental Rights

Brian Soucek, Marriage, morality, and federalism: The USA and Europe compared

Michèle Finck, Fragmentation as an agent of integration: Subnational authorities in EU law

Bilyana Petkova, Domesticating the “foreign” in making transatlantic data privacy law

Thomas Kleinlein, Federalisms, rights, and autonomies: The United States, Germany, and the EU

I.CON: Debate!

Catharine MacKinnon, Substantive equality revisited: A rejoinder to Sandra Fredman

I.CON: Debate!

Anna Södersten, The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A reply to Ruth Rubio Marín

Ruth Rubio Marín,  The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter: A rejoinder to Anna Södersten

Critical Review of Governance

Peter Hilpold, Quotas as an instrument of burden-sharing in international refugee law: The many facets of an instrument still in the making

Mathias Möschel, Race in French “republican” law: The case of Gens du voyage and Roma

 Book Reviews

Andrew Arato. Post Sovereign Constitution Making: Learning and Legitimacy (Richard Mailey)

Jan-Werner Müller. What is Populism? (Juan F. González Bertomeu and Maria Paula Saffon)

Michael W. Dowdle and Michael A. Wilkinson (eds.). Constitutionalism Beyond Liberalism (Tejas Parasher)

Yaniv Roznai. Unconstitutional Constitutional Amendments (Thomas Wischmeyer)

 Scott Stephenson. From Dialogue to Disagreement in Comparative Rights Constitutionalism (Claudia Geiringer)

Jiří Přibáň. Sovereignty in Post-Sovereign Society: A Systems Theory of European Constitutionalism (Jack Meakin)

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Published on February 16, 2018
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Fighting the “New Normal,” North and South (I-CONnect Column)

Francisca Pou Giménez, ITAM, Mexico City

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

As contributions to this blog regularly attest, we professors spend a good part of our time crafting concepts, suggesting labels, producing classifications, and identifying and naming trends. From this perspective, political and legal developments in Mexico have often posed a challenge. Twenty years ago, transition studies already had difficulties in classifying the regime the country was gradually abandoning. Looking back, at the beginning of the 1990s, a scholar famously compared the PRI-led system to a platypus, the semiaquatic egg-laying mammal with a beaver tail and a duck mouth.[1] It wasn’t democratic, but neither dictatorial nor totalitarian; it was authoritarian, yet of a civil and not of a military kind; it suffocated political pluralism, yet allowed for a degree of political contestation within the hegemonic party; it was elitist, but also in some way inclusive of peasants, workers and business people.

More than two decades after, Mexico is generally named a democracy, but it is still one very difficult to apprehend and adjectivize. At the constitutional level, its 101-year old text —amended more than 700 times—is very heterogeneous: it contains most of the institutions distinctive of contemporary Latin American constitutions, yet also remnants of time past, and provisions that do not pass rights-based muster.[2] As far as performance is concerned, things couldn’t look grimmer, with more than 150,000 violent deaths and 25,000 disappeared people in ten years,[3] a Gini coefficient above 0.5,[4] 53 million people in poverty,[5] and political and social dynamics swamped by corruption and impunity. Yet things go on. The country is still the eleventh-largest economy in the world;[6] tourism achieved last year a record figure of 35 million visitors;[7] people prepare for the July 2018 election; and judges and public officials get up in the morning and go about their jobs. Mexico is today a country in which everything is seemingly susceptible of being “normalized.”

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Published on February 14, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher (University of Antwerp)

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 High Court in Kenya found the country’s criminal defamation law unconstitutional.
  2. The Constitutional Court in Malta ruled that a person facing criminal proceedings has a right to silence when testifying before a parliamentary committee.
  3. The Constitutional Court in Spain announced that it would consider a motion to suspend home rule in Catalonia.
  4. The Supreme Court in Namibia ruled that long jail terms are unconstitutional.
  5. The Constitutional Court in Turkey rejected a demand to release two Turkish journalists despite an earlier ruling that the rights of imprisoned journalists had been violated.
  6. The Constitutional Court in Zambia suspended the case in which four political parties seek an interpretation of President’s eligibility to run for office in the 2021 presidential elections.
  7. The Supreme Court in Ireland refused the Pro-Life Campaign’s application to be heard in the State’s forthcoming appeal concerning the extent of the constitutional rights of the unborn.
  8. The Supreme Court in South Korea will judge the case against the South Korean government over cryptocurrency regulations.
  9. The Constitutional Court in Germany ruled that party members get a say on the grand coalition deal.
  10. The Constitutional Court in South Africa will decide whether two sections in the Firearms Control Act are unconstitutional.
  11. The Supreme Court in Cambodia upheld the conviction against land rights activist in a case widely seen as politically motivated.

In the News

  1. The European Parliament demanded control of who will succeed the head of the EU executive next year, setting up a clash with national governments in the coming months.
  2. The Australian parliament will amend the proposed Foreign Interference Law in order to protect journalists.
  3. Security forces in the Maldives sealed off the Parliament and arrested two opposition legislators.
  4. A judge from the Netherlands will ask the European Court of Justice to answer key questions about the rights of UK citizens on the continent post-Brexit.
  5. The Polish President signed the anti-defamation bill, causing international protests.
  6. A Pakistani court sentenced one person to death and five others to life imprisonment for lynching a student accused of blasphemy.
  7. The French president rejected growing nationalist demands in Corsica.
  8. The European Union enlargement commissioner affirmed that Serbia must reach a legally binding agreement on relations with Kosovo if it aims to join the EU by 2025.
  9. South Africa’s deputy president announced it is expected that the president steps down in the coming days.
  10. The Court of Final Appeal in Hong Kong freed three democracy leaders but warned against future acts of dissent.
  11. The Irish parliament is suspended after a huge row between politicians.
  12. The ceremonial opening of the new session of Jamaican parliament scheduled to take place on 15 February 2018.
  13. The Antigua and Barbuda parliament approved a bill allowing the use of cannabis.
  14. The members of the Welsh parliament spoke the Welsh language in debate for the first.
  15. The Iraqi Parliament suspended three Kurdish lawmakers for objecting to the 2018 budget bill.
  16. The Ukrainian parliament condemned the Polish anti-defamation law that allows penalties to be imposed on anyone who denies crimes committed by Ukrainian nationalists.

New Scholarship

  1. Richard Albert, Formas y función de la enmienda constitucional (2017) (explaining how constitutional amendment rules are structured, and offering advice on designing rules for both adopting and amending constitutions)
  2. Alice Valdesalici, Francesco Palermo and Annika Kress (eds.), Comparing Fiscal Federalism (2018 forthcoming) (investigating intergovernmental financial relations and the current de jure and de facto allocation of financial and fiscal powers in compound states from a comparative and interdisciplinary perspective)
  3. Sadaf Aziz, The Constitution of Pakistan, A Contextual Analysis (2018) (providing a contextual account of Pakistan’s constitutional laws and history from a pre-colonial period to a contemporary setting)
  4. Nico Steytler (ed.), Concurrent Powers in Federal Systems, Meaning, Making, Managing (2017) (examining from a comparative perspective the issue of concurrency of powers confronting both established and emerging federations through case studies of 16 countries on five continents)
  5. Robert Böttner and Jan Grinc, Bridging Clauses in European Constitutional Law: Legal Framework and Parliamentary Participation (2018) (focusing on the legal framework for the use of the bridging clauses of TEU as well as on parliamentary participation in the process of activating these clauses)
  6. Michael Hein, Constitutional Entrenchment Clauses Dataset (2018) (providing a new dataset on constitutional entrenchment clauses in 860 national constitutions from 1776 to 2015)
  7. Aleksandra Gliszczynska-Grabias and Anna Sledzinska-Simon, Victimhood of the Nation as a Legally Protected Value in Transitional States – Poland as a Case Study (2016) explaining mechanism of using criminal laws for historical assessment and showing instances when victimhood becomes a legally protected value used to justify limitations of free speech and academic research)
  8. Lucia Serena And Federico Casolari (eds.), The Principle of Equality in EU Law (2018) (providing a comprehensive, in-depth legal analysis of the actual understanding of the equality principle at EU level after a period of significant change)

Call for Papers and Announcements

  1. Richard Albert and Martin Scheinin invite submissions for the Workshop on Abuse of the Constitution in Times of Emergency at the 10th World Congress in Constitutional Law, scheduled for June 18-22, 2018 in Seoul.
  2. Global Constitutionalism, in partnership with PluriCourts, is organizing a workshop “Challenges to Global Constitutionalism” on 4-6 July in Berlin. The deadline for submitting abstracts is 23 February 2018.
  3. The International Association of Constitutional Law announces a call for abstracts for the 10th World Congress of Constitutional Law “Violent Conflicts, Peace-Building and Constitutional Law” on 18-22 June 2018 in Seoul. The deadline for a submission of abstracts is 30 March 2018.
  4. The University of Sydney organizes the conference “The New Citizenship: Law, Legal Status and Belonging in the 21st Century” on 15-16 March 2018 in Sydney. The registrations must be completed
  5. The Centre for Legal Theory and Empirical Jurisprudence invites submissions for “The second Conference on Empirical Legal Studies in Europe (CELSE)” on 31 May to 1 June 2018 in Leuven. The deadline for submitting abstracts is 15 February 2018.
  6. The University of Innsbruck organizes a conference on “Representing Regions, Challenging Bicameralism” on 22-23 March 2018. The registrations are due to 19 March 2018.
  7. The Sorbonne Law Faculty, the University of Strasbourg, the Albert Ludwigs University, the German University of Administrative Sciences, the Heidelberg Law Faculty, and the Max Planck Institute for Comparative Public Law and International Law in cooperation with the University of Milan organize the 12th German-French Doctoral Seminar on Comparative Law in Public Law, International Law and European Law “Rechtsvergleichung im öffentlichen Recht angesichts der europäischen Integration” on 7-9 June 2018 in Heidelberg. The deadline for applications is 15 March 2018.
  8. The Institute of Federalism and the Chair of Swiss and Comparative Constitutional Law of the University of Fribourg announces the 28th Edition of the three-week Summer University “Federalism, Decentralisation and Conflict Resolution” from 27 August to12 September 2018 in Fribourg. The deadline for application is 31 March 2018.
  9. The International Association of Centres for Federal Studies (IACFS) announces that entries for the Ronald L. Watts Young Scholar Award 2018 are now open. Nominations and papers must be submitted no later than 30 April 2018.
  10. The University of Melbourne and the University of Cambridge organize a conference “The Frontiers of Public Law” on 11-13 July 2018 in Melbourne. Online registration is now open.
  11. Institute of Legal Information Theory and Techniques of the Italian National Research Council welcomes abstract submissions for the conference “Law via the Internet 2018, Knowledge of the Law in the Big Data Age” on 11-12 October 2018 in Florence. The deadline for submitting abstracts is 27 April 2018.
  12. The Government and Law Research Group at the University of Antwerp organizes a full-day eight annual doctoral conference “Values and principles in multilevel governance: challenges and opportunities” on 25 May 2018 in Antwerp.

Elsewhere Online

  1. Alexander Kloth, One law to rule them all, The Völkerrechtsblog
  2. Leah Trueblood, The Merits and Meaning of a ‘Second’ Referendum, UK Constitutional Law Association
  3. Siim Trumm, Different visions of representation among voters and candidates in Wales, Democratic Audit UK
  4. Helen Irving, What is history, again?, AUPUBLAW
  5. Rick Hasen, Understanding the Supreme Court’s Two Orders in the North Carolina Gerrymandering Cases, and How It Fits into the Bigger Picture, Election Law Blog
  6. Marc Sanjaume-Calvet, Secession and Federalism: A Chiaroscuro, 50 Shades of Federalism
  7. Elisabeth Greif, Symposium on the ‘Third Option’: ‘Not Man, Not Woman, Not Nothing’: Tertium NON datur: Gender binary as a ‘principle of the Austrian legal order’?, Blog of the IACL, AIDC
  8. Maximilian Steinbeis, Project Waterproof, Verfassungsblog
  9. Stefanie Lemke, Who Holds Russia’s Judges and Public Prosecutors to Account?, The Völkerrechtsblog
  10. Tomáš Nociar, Far right politics in Germany: from fascism to populism?, Democratic Audit UK
  11. George W. Gathigi, How Closure of TV Stations has narrowed Democratic Space in Kenya, AfricanLii
  12. Editor, ‘Losing Opportunities’, Lebanon Campaigns for More Women in Parliament, Asharq Al Awsat
  13. Christopher R. Hill, South Korean President Moon Jae-in’s Olympic realpolitik, Japan Times
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Published on February 12, 2018
Author:          Filed under: Reviews
 

Virtual Bookshelf: A Review of “Constitutional Dialogue in Common Law Asia” by Po Jen Yap

Richard Albert, The University of Texas at Austin

The concept of constitutional “dialogue” has become prevalent in public law scholarship. The term is commonly used to describe one particular form of interaction between courts and legislatures in connection with the interpretation of constitutional rights–an interaction characterized by a judicial-legislative exchange on the proper outcome rather than by immediate judicial finality on the meaning of the constitution.

Scholars have often studied the concept of constitutional dialogue as it occurs (or not) in Commonwealth jurisdictions, namely Australia, Canada, New Zealand and the UK. Yet there is little scholarship on dialogue in Asia. In his book on Constitutional Dialogue in Common Law Asia (OUP 2015), Po Jen Yap seeks to change that.

Yap investigates the constitutional systems of three former British colonies: Malaysia, Singapore, and Hong Kong. All three continue to observe common law norms. Yet none of these three constitutions entrenches a special structural device that enables the legislature to reverse or avoid a constitutional judgment that strikes them as incorrect or undesirable. The only recourse under any of these three constitutions is constitutional amendment.

Yet Yap shows that dialogic constitutional review is nonetheless possible in all three jurisdictions in light of their courts’ capacity to draw from judicial techniques and canons that foster debate with other political branches on constitutional values. The book focuses specifically on dialogic constitutional review of freedom of expression, freedom of religion, the right to equality, and criminal due process rights. In the ends, Yap concludes that dialogic review is superior to legislative and judicial supremacy: 

In seeking the harmony between the settled expectations of the past and the evolving needs of a changing society, the judiciary must convene an enduring and continuous colloquy on rights with the political branches of government, and the polity at large. … This dialogue between the coordinate branches of government should be viewed as a constitutional blessing, and not a bane, for it conjoins the best in both statecraft and adjudication. (227)

This book will interest scholars of constitutional review and of constitutional rights more generally. It is also a much needed window into constitutional review in Asia. Yap does a great service to the field by writing what will serve for many as an introduction to three new jurisdictions, and as a challenge to the view that dialogue occurs only when authorized by special constitutional devices.

Suggested Citation: Richard Albert, Book Review, “Constitutional Dialogue in Common Law Asia” by Po Jen Yap, Feb. 9, 2018, at: http://www.iconnectblog.com/2018/02/virtual-bookshelf-a-review-of-constitutional-dialogue-in-common-law-asia-by-po-jen-yap

 

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Published on February 9, 2018
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Virtual Bookshelf: A Review of “The Italian Parliament in the European Union” by Nicola Lupo and Giovanni Piccirilli

Richard Albert, The University of Texas at Austin

In the most recent installment in the new Hart Series on Parliamentary Democracy in Europe, Nicola Lupo (LUISS Rome) and Giovanni Piccirilli (LUISS Rome) bring us an edited volume on The Italian Parliament in the European Union (Oxford: Hart 2017). Lupo and Piccirilli have assembled roughly 20 scholars to explore the interrelationship(s) between the Italian Parliament and the European Union.

The book is divided into four major parts:

  1. “Italy Coping with the Process of European Integration,” which contains four chapters;
  2. “The Formation of the National Position in the EU,” which likewise contains four chapters, including a fascinating chapter on the tensions between unitarism and regionalism by Cristina Fasone (LUISS Rome) entitled “The Coordination with the Regional Councils,” in my view an illuminating comparative complement to the new line of American literature on cooperative and uncooperative federalism;
  3. “The Italian Parliament in the ‘Euro-national’ Parliamentary System,” which contains six chapters, including one on treaty-making and -changing by Barbara Guastaferro (Naples “Federico II”) entitled “Procedures vis-à-vis the “Masters of the Treaties’: The Parliamentary Role in the Revision of Treaties”;
  4. “The Italian Future in a European Perspective,” consisting of three chapters, including a contribution by Maria Romaniello (LUISS Rome) on “The Italian Symmetrical Bicameral System in EU Affairs.”

The volume is bookended by a Foreword by Andrea Manzella (LUISS Rome) and an Afterword by Peter Lindseth (UCONN).

In light of my own interests in constitutional change and amendment, I was particularly drawn to the concluding chapter on “‘Silent’ Constitutional Transformations: The Italian Way of Adapting to the European Union,” co-authored by Lupo and Piccirilli. The premise of the chapter is a paradox: the Italian Constitution has changed dramatically over the years, though often without a corresponding alteration to its text. This is what Lupo and Piccirilli describe as a “silent constitutional transformation.” They perceive this phenomenon with regard both to Italy’s membership in the European Union and also to the country’s own constitutional arrangements. The Italian Constitution, they suggest, is no longer what it once was but one could not identify all of the intervening changes from a plain reading of the country’s formal constitution.

Begin with Article 11 of the Constitution. Since 1947, it states that “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations” and “promotes and encourages international organisations furthering such ends.” [p 323] The authors explain that this Article has been an important vehicle for the country’s integration into the European Union. Although there have been some formal constitutional amendments involving the European Union–including to Articles 81, 97, 117 and 122 [pp 323-24]–the authors stress that “the Italian participation in the European Union has been relying essentially on just legislative means … .” [p 325]

Thanks to the constitutional reference to sovereignty and its limitations, Italy has been capable to ensure the ratification of all the European Treaties by means of ordinary legislation and the legal effectiveness of EU law to the domestic legal order, allowing also the Italian Constitutional Court to progressively adapt its case law to the early affirmation of the primacy and direct effect by the European Court of Justice as early as the 1960s. [p 323]

The same kind of “silent constitutional transformation” is evident in the changing role of the Parliament in Italy’s domestic constitutional order. A particularly powerful example developed by the authors concerns the evolution of Italian parliamentary rules of procedure and their consequences for constitutional law.

There is much more to be said about this important chapter and indeed about the entire volume. I invite our readers to have a look at the book for themselves. I am confident it will be well worth the time.

Suggested Citation: Richard Albert, Book Review, “The Italian Parliament in the European Union” by Nicola Lupo and Giovanni Piccirilli, Feb. 7, 2018, at: http://www.iconnectblog.com/2018/02/virtual-bookshelf-the-italian-parliament-in-the-european-union-by-nicola-lupo-and-giovanni-piccirilli

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Published on February 7, 2018
Author:          Filed under: Reviews
 

What’s New in Public Law

Vicente F. Benítez R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana (Colombia)

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 U.S. Supreme Court halted the execution of an inmate who suffers from dementia.
  2. The Supreme Tribunal of Venezuela prevented the opposition coalition from participating in the upcoming presidential elections
  3. The Spanish Constitutional Court ruled that in order to proceed with the investiture of Carles Puigdemont as President of the Catalonian Government, he must be physically present at the swearing-in session in Barcelona, and count with a judge’s permission to attend. As a result, the Parliament of Catalonia decided to postpone the election of a new President.
  4. The Constitutional Court of Thailand agreed to analyze the constitutionality of the recent amendments to an anti-graft law.
  5. The Constitutional Court of Malta held that the right to remain silent is also applicable in proceedings conducted by parliamentary committees.
  6. The Supreme Court of India dismissed a petition seeking the deletion of several scenes from the film ‘Padmaavat’.
  7. The Constitutional Court of Bulgaria concluded that the Parliament’s refusal to accept MP Delyan Dobrev’s resignation is unconstitutional.
  8. The Federal Court of Malaysia ruled that religious conversion of minors, requires the consent of both parents.
  9. The Constitutional Court of Romania partially quashed a legal reform that sought to curtail the powers of an anti-corruption body and to suppress the presidential veto to the governmental appointment of senior prosecutors.
  10. The Constitutional Court of Zambia adjourned the examination of a petition regarding the eligibility of President Edgar Lungu as presidential candidate for the 2021 elections.
  11. The Constitutional Court of Slovenia held that the statutory provisions governing the financing and execution of referenda are unconstitutional.
  12. The Constitutional Court of Croatia dismissed a constitutional complaint filed by a public official who was sentenced in 2016 for war crimes committed in the 1990’s.

In the News

  1. The Canadian Government published the report drafted by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, regarding the appointment process of Justice Sheilah L. Martin to the Supreme Court of Canada.
  2. The Privacy Commissioner of Canada proposed a policy to remove or amend inaccurate, incomplete or outdated information from online search engines, in an attempt to protect personal reputation.
  3. José Arturo Sierra, former President of the Guatemalan Supreme Court of Justice, was murdered on the outskirts of Guatemala City.
  4. Ireland’s Prime Minister, Leo Varadkar, announced he will campaign for repealing the prohibition on abortion, which will be voted on at this summer’s referendum.
  5. Rodrigo Duterte, President of Philippines, declared that he wants the constitutional revision to the 1987 Constitution to be ready within this year.
  6. The South Sudanese National Constitutional Amendment Committee (NCAC) submitted to the Minister of Justice an amendment package aimed at making several existent security laws compatible with the Agreement on the Resolution of Conflict in the Republic of South Sudan signed in 2015.
  7. Romanian designated Prime Minister, Viorica Dancila, presented her newly-appointed cabinet members amidst protests.
  8. Russian President nominated Valery Zorkin as Chairman of the Constitutional Court.
  9. U.S. Supreme Court Associate Justice Ruth Bader Ginsburg said that she has no plans to retire soon from the Court.
  10. The new Vice President of the Colombian Supreme Court of Justice criticized a judicial decision taken by the Court’s Civil Chamber that required a news outlet to reveal its sources.
  11. Ecuador prepares to hold a constitutional referendum on February 4, 2018. Although the referendum contains several questions, the most important one asks the electorate whether presidential term limits should be reinstated into the Constitution.
  12. Simplice Comlan Dato, Justice of the Constitutional Court of Benin, resigned his post.
  13. The incumbent President of Czech Republic, Milos Zeman, won the second round of the presidential election held on 26-27 January 2018.
  14. The Scottish Minister for UK Negotiations on Scotland’s Place in Europe and the Welsh Cabinet Secretary for Finance and Local Government expressed concerns over the EU Withdrawal Bill, claiming that it allows the U.K. government to take control of previously devolved policy areas.
  15. The U.K. Lords Constitution Committee said that the EU Withdrawal Bill needs major amendments.
  16. The Cabinet Division of Bangladesh agreed to propose a constitutional amendment to extend the period of parliamentary seats reserved for female MPs from 10 to 25 years.
  17. Maldives’ opposition leaders petitioned the Supreme Court to suspend President Yameen Abdul Gayoom from his post due to corruption accusations.
  18. The President of Finland, Sauli Niinisto, was reelected for a second term in office.
  19. The Cambodian Constitutional Council will discuss a package of proposals to modify multiple provisions of the Constitution.
  20. Japan’s Primer Minister, Shinzo Abe, encouraged has encouraged broad agreement for amending article 9 of the Constitution.
  21. In the face of a petition filed before the Supreme Court of India by Rohingya forced migrants who seek to be recognized as refugees, the Indian Government contended that this is not a matter for the Court to intervene.
  22. The GERB political party of Bulgaria, will ask the Constitutional Court to determine whether the Istanbul Convention on Domestic Violence is compatible with the Constitution.
  23. Poland’s Senate passed a statute criminalizing speeches that ascribe to the Polish state any responsibility for the crimes committed by the Third Reich.
  24. The Kenyan government prohibited three private TV channels from broadcasting a symbolic presidential inauguration of an opposition leader, despite a judicial order suspending this prohibition.
  25. The German Federal Council (Bundesrat) asked the Constitutional Court to ban funding to support the activities of the right-wing National Democratic Party (NPD).
  26. The President of the Constitutional Court of Moldova, Tudor Panţîru, resigned to his post as Justice.
  27. Korean President Moon Jae-in urged Parliament to pass a constitutional amendment to expand decentralization.

New Scholarship

  1. Martin Loughlin, The Political Constitution Revisited, LSE Legal Studies Working Paper No. 18 (2017) (claiming that political constitutionalists have distorted John Griffith’s functional perspective of British constitutionalism)
  2. Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (2018) (providing a contextual account of Pakistan’s constitutional laws and history)
  3. Andrew Arato, The Adventures of the Constituent Power (2017) (analyzing the democratic methods used by political communities to enact their basic law)
  4. Katharine G. Young, Proportionality, Reasonableness, and Economic and Social Rights, in Vicki Jackson and Mark Tushnet eds., Proportionality: New Frontiers, New Challenges (2017) (exploring the relationship between reasonableness review and proportionality in the framework of economic and social rights)
  5. Cormac S. Mac Amhlaigh, Who’s Afraid of Supra-State Constitutional Theory?: Two Reasons to Be Sceptical of the Sceptics, in K. Walton, W. Sadurski, M. Sevel eds., Legitimacy: The State and Beyond (2018), Edinburgh School of Law Research Paper No. 2017/23 (advancing two reasons to overcome the skepticism about bringing constitutionalism beyond the state)
  6. Benoit Frydman, From accuracy to accountability: subjecting global indicators to the rule of law, International Journal of Law in Context (2018) (arguing that, since social indicators are tools for global governance, they should be accountable via judicial review)
  7. Graham Butler, The Court of Justice as an inter-state court, Yearbook of European Law (2017) (analyzing the instruments of Article 259 TFEU and Article 273 TFEU for inter-state litigation between EU Member States before the Court of Justice of the European Union)
  8. Rivka Weill, Bills of Rights with Strings Attached: Protecting Death Penalty, Slavery, Discriminatory Religious Practices and the Past from Judicial Review, in Rosalind Dixon, Goeffrey Sigalet, and Grégoire Webber eds., Constitutional Dialogue: Rights, Democracy, Institutions (Forthcoming) (offering a theoretical and comparative framework of constitutional clauses –saving clauses– that shield certain pre-constitutional rules or practices from judicial review)
  9. Andrés Botero-Bernal and Mario Cajas-Sarria, Historia del Derecho en América Latina I, Precedente Journal of Law (2018) (introducing a first issue, out of two, entirely devoted to Legal History in Latin America) (in Spanish)
  10. Stefan Salomon, Self-determination in the Case Law of the African Commission: Lessons for Europe, VRÜ Verfassung und Recht in Übersee (2017) (inquiring into the postcolonial contexts of self-determination by focusing on the case law of the African Commission on Human and Peoples Rights –ACHPR– and arguing that legal developments of self-determination in the Global South have largely gone unnoticed in legal scholarship)
  11. Kitpatchara Somanawat, Constructing the Identity of the Thai Judge: Virtue, Status, and Power, Asian Journal of Law and Society (2018) (examining the exalted status of Thai judges, and contending that this status derives from a process of identity construction)

Special Announcement

Professor Mark S. Kende (James Madison Chair in Constitutional Law, Director of the Constitutional Law Center, Drake University Law School) shares a partial bibliography of 2017 Comparative Constitutional Law Books and Articles.

Call for Papers and Announcements

  1. The Institute for Global and Law and Policy (IGLP) at Harvard Law School, invites scholars to submit abstract and panel proposals for its forthcoming IGLP Conference to be held on June 2-3, 2018. The deadline for submission is March 16, 2018.
  2. The International Review of Contemporary Legal Issues invites submissions for its Third Issue to be published in June 2018. Contributions should be sent by April 30, 2018.
  3. The Association of Human Rights Institutes (AHRI) calls for paper and panel proposals for the general AHRI Human Rights Research Conference, which will take place at the University of Edinburgh Law School on 7-8 September 2018. Proposals should be sent by March 5, 2018.
  4. The Indian Journal of Law and Public Policy invites interested scholars to submit contributions for its next issue by February 28, 2018.
  5. The University of Aberdeen, in collaboration with the Horizon 2020 Marie Sklodowska-Curie programme offers six Early Stage Researcher positions to interested applicants who want to pursue a PhD degree focusing on how political concepts are used in the world. The deadline for applications is March 20, 2018.
  6. Tamil Nadu National Law School, in collaboration with Oxford Human Rights Hub invites paper submissions for its ‘International Conference on Affirmative Action and the Sustainable Development Goal of Gender Equality’. Abstract proposals should be sent by February 28, 2018.
  7. Konrad Adenauer Stiftung through its Rule of Law Program in Latin America welcomes papers written in Spanish or Portuguese for the 2018 Latin American Yearbook of Constitutional Law. The deadline for submitting contributions is March 31, 2018.
  8. The Central and Eastern European Network of Jurisprudence (CEENJ) calls for paper proposals for its XIIIth Annual Conference on “Jurisprudence in Central and Eastern Europe: Work in Progress 2018”. The deadline for submissions is June 1, 2018.
  9. The Peter McMullin Centre on Statelessness, at the University of Melbourne, invites scholars to apply for a scholarship to pursue a PhD degree on the areas of interest to the Center. Applications should be sent by February 19, 2018.
  10. The WZB Berlin Social Science Center invites interested scholars to apply for a Research Fellow position in the field of “Global Governance of Citizenship”. Application deadline is March 15, 2018,

Elsewhere Online

  1. Christina Zampas, Irish Government announces referendum on abortion, Reprohealthlaw Blog
  2. Vincent W.J. van Gerven Oei, While You Were Reforming the Justice System…, exit
  3. Sandra Martin, Fight to the death: Why Canada’s physician-assisted dying debate has only just begun, The Globe and Mail
  4. Vernon Bogdanor, The Lords has the right to ask the Commons to reconsider Brexit, The Guardian
  5. Patricia Popelier, Dynamic Federalism, 50 Shades of Federalism
  6. Pierre de Vos, The Cape Town Water Crisis: Why Is the DA Conflating Party and State?, Constitutionally Speaking
  7. Julienne E. Grant, UPDATE: Researching the Law of Latin America, GlobaLex
  8. Adam Bodnar, Free Men and Genuine Judges will Remember about Free Courts, Verfassungsblog
  9. Michal Ovádek, Drama or Serenity? Upcoming Judicial Appointments at the Slovak Constitutional Court, Verfassungsblog
  10. Meg Russell, The Lords and the EU Withdrawal Bill: 10 predictions, The Constitution Unit
  11. Henry Goodwin, The ‘rule of law crisis’, Europe’s most existential challenge, EUI Times
  12. Mark Elliott and Stephen Tierney, Sovereignty or Supremacy? Lords Constitution Committee Reports on EU (Withdrawal) Bill, U.K. Const. L. Blog
  13. Sawadogo Lamoussa, Beyond term limits: Burkina Faso’s attempt to tame the presidency and to strengthen constitutional checks, Constitutionnet
  14. Linda Greenhouse, The Chief Justice, Searching for Middle Ground, The New York Times
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Published on February 5, 2018
Author:          Filed under: Developments
 

One Step Forward, Two Steps Back? Constructive res judicata in Malaysian Constitutional Cases

Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution

–Shukri Ahmad Shahizam, LL.B. Candidate, London School of Economics

In a long-awaited judgement with large ramifications on cases throughout the country the apex court in Malaysia, the Federal Court, has thrown a spanner into the works of constitutional challenges against restrictions on fundamental freedoms.

Mat Shuhaimi v The Government of Malaysia (Civil Appeal No. 01 (f)-6-03/2017(W)) (Federal Court) (‘Shuhaimi 3’) concerns a constitutional challenge against the Sedition Act 1948 on the basis that its criminalization of ‘sedition’ on a strict liability basis is unconstitutional.

Read the rest of this entry…

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Published on February 3, 2018
Author:          Filed under: Analysis