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I·CONnect

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

Should Prisoners Have the Right to Assisted Suicide?

Michèle Finck, University of Oxford

Recently, a Belgian inmate, convicted of murder and rape, received a lethal injection. Most Europeans would feel nothing short of a shock when reading these lines. After all, the death penalty has been abolished in most European States in the aftermath of WWII, and is now outlawed by Protocol No. 6 to the ECHR. Belgium did not however breach any of its international obligations – rather it gave way to the inmate’s request to be euthanized.

The Belgian case raises a number of interesting questions in the context of a wider debate about euthanasia, a practice that has been legalized in a number of jurisdictions in recent years. Further, a number of countries, such as Canada and the UK, are currently debating whether assisted suicide should be legal. No doubt, euthanasia is a live issue in many jurisdictions at this moment in time. An aspect that is rarely addressed in the context of such debates however is the status of prisoners. This question, delicate as it may be, forces an evaluation of the circumstances in which it is ethically permissible to end one’s life.

Read the rest of this entry…

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Published on November 21, 2014
Author:          Filed under: Analysis
 

The Internet Tax Debate: Genuine Freedom of Assembly vs. the Illusion of Direct Democracy in Hungary

Zoltán Pozsár-Szentmiklósy, ELTE University, Budapest

On October 21, 2014, Hungarian government officials announced that in the 2015 state budget they would include a tax on internet data transfer. This so-called internet tax was widely criticized in the media and in civil society. A rapidly growing protest movement was organized on Facebook and a demonstration took place on October 26 in Budapest. The protest was suprisingly widely supported; several thousand protesters participated. The protesters expressed a clear message to the Government: they expected state officials to withdraw their proposal, otherwise after two days another demonstration would follow.

Due to the fact that there was no change in the official communication of the Government, two days later another demonstration was organised in Budapest and in several other cities. In the capital people gathered together in surprisingly large numbers (in the tens of thousands). According to them, the planned tax was a restriction of their freedom to access all relevant information related to private and public life. The organizers of the peaceful demonstration have also stated that their intention is to stand against the arbitrary legislation proposed by the Government. In this regard it is important to note that the freedom of information is a prerequisite for genuine and open debates related to public matters – an essential value of democracy itself.

Although the Government continued to refuse to give any reasonable explanation to the public regarding the new tax, three days later the prime minister announced that the Government would withdraw the proposal. The main argument expressed was that the governing party wants to govern together with the people, so there will be no decision which people don’t support. The prime minister also expressed his will to initiate a so called national consultation about the regulation related to the internet.

How can we assess all of these developments from the point of view of constitutional law? Read the rest of this entry…

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Published on November 19, 2014
Author:          Filed under: Developments
 

Video Interview: “Bills of Rights in the Common Law” Featuring Robert Leckey

Richard Albert, Boston College Law School

In this installment of our new video interview series at I-CONnect, I interview Robert Leckey on his forthcoming book entitled “Bills of Rights in the Common Law,” to be published by Cambridge University Press in May 2015.

Here is the book’s abstract:

Scholars have addressed at length the ‘what’ of judicial review under a bill of rights–scrutinizing legislation and striking it down–but neglected the ‘how’. Adopting an internal legal perspective, Robert Leckey addresses that gap by reporting on the processes and activities of judges of the highest courts of Canada, South Africa and the United Kingdom as they apply their relatively new bills of rights. Rejecting the tendency to view rights adjudication as novel and unique, he connects it to the tradition of judging and judicial review in the Commonwealth and identifies respects in which judges’ activities in rights cases genuinely are novel – and problematic. Highlighting inventiveness in rights adjudication, including creative remedies and guidance to legislative drafters, he challenges classifications of review as strong or weak. Disputing claims that it is modest and dialogic, he also argues that remedial discretion denies justice to individuals and undermines constitutional supremacy.

In the interview, we discuss what prompted this new inquiry into judicial review, why he chose as his case studies Canada, South Africa and the United Kingdom, how his book is distinguishable from other works in the field, notably by Stephen GardbaumJanet Hiebert and Mark Tushnet, and what he hopes readers will take away from his book.

Robert Leckey is an Associate Professor and William Dawson Scholar at McGill University, Faculty of Law, where he also directs the Paul-André Crépeau Centre for Private and Comparative Law. He teaches constitutional law and family law. A former law clerk for Justice Michel Bastarache of the Supreme Court of Canada, he holds degrees from Queen’s University, McGill and the University of Toronto. Leckey has earned many scholarly distinctions including the Prix de la Fondation du Barreau du Québec (2007), the Canadian Association of Law Teachers’ Scholarly Paper Prize (2009), the McGill Law Students’ Association’s John W. Durnford Teaching Excellence Award (2009), the Canada Prize of the International Academy of Comparative Law (2010), and the Principal’s Prize for Excellence in Teaching (2010).

The full interview runs 16 minutes, and is available here.

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Published on November 18, 2014
Author:          Filed under: Reviews
 

What’s New in Comparative Public Law

–Margaret Lan Xiao, Washington University in St. Louis

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

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

Developments in Constitutional Courts:

  1. Armenia: The Constitutional Court endorses the constitutionality of the country’s accession to the Eurasian Economic Union.
  2. Turkey: Constitutional Court rules that some civil servants and institutions accused of biased and unjust behavior in handling a previous murder case should be investigated.
  3. Hungary: The Constitutional Court upholds the validity and legality of certain provisions in borrowers’ relief law which prohibits any unilateral changes to loan contracts.
  4. Dominican Republic: Various civil society organizations publicly rebuke the Constitutional Court’s previous ruling on the unconstitutionality of the Inter-American Human Rights Court’s jurisdiction.
  5. South Africa: The Constitutional Court is going to hear a case relating to a lower court’s ruling that a part of the current Criminal Procedure Act is unconstitutional.

In the News:

  1. Guyana: The President has suspended the National Assembly.
  2. Somalia: Parliament closed prematurely without official proceedings.
  3. South Africa: An extensive brawl broke out in Parliament.
  4. German: Parliament proposes an anti-doping law that would jail dopers.
  5. Ghana: Parliament is divided over the controversial Interstate Succession Bill.

New Scholarship

  1. Benjamin Schonthal, Constitutionalizing Religion: The Pyrrhic Success of Religious Rights in Postcolonial Sri Lanka, Journal of Law and Religion / FirstView Article (arguing that it is not law’s failure that adds to the intensity of religious tensions in Sri Lanka, but rather law’s pyrrhic success)
  2. Daniel J. Hulsebosch, The Revolutionary Portfolio: Constitution-Making and the Wider World in the American Revolution, NYU School of Law, Public Law Research Paper No. 14-56 (arguing that the American constitution-making in the founding era should be viewed with two dimensions of internationalism, one was diplomatic, and the other was cultural and intellectual, and to some extent, the intellectual dimension was autonomous from diplomacy for it engendered a transnational discussion about the optimal forms of institutional design)
  3. John Witte Jr., Religion, Emory Legal Studies Research Paper No. 14-314 (arguing that religion is an important source of modern human rights, and surveying the place of religion in modern international human rights)
  4. Jason Sorens et al, Arab Spring Constitution-Making: Polarization and State Building, Democratization: Building States & Democratic Processes EJournal Vol. 7, No. 41 (testing the validity of a hypothesis of the existence of a U-shaped relationship between political polarization in the general public and net state capacity-building provisions in constitutions of new democracies)
  5. Chien-Chih Lin, Majoritarian Judicial Review: The Case of Taiwan, National Taiwan University Law Review, Vol. 9:1, 2014 (demonstrating the fact that Constitutional Court in Taiwan is indeed a majoritarian court in terms of its docket records and agenda setting, and discovering that judicial self-restraint is indeed counter-majoritarian in Taiwan)

Elsewhere Online

  1. Jurgen Goossens et al: Video interview with Prof. Tierney: Should the People decide? The Scottish and Catalonian referenda, Bel Con Law Blog
  2. Ryan Mitchell, China’s Reforms: Law Without Rights or Law Without Substance? The Huffington Post
  3. Lyle Denniston, Constitution Check: Does the new Obamacare challenge have anything to do with the Constitution? Constitution Daily
  4. Dan Harris, How To Handle China’s Economic Slowdown, China Law Blog
  5. Richard Socarides, Will the Supreme Court Mandate Gay Marriage?, The New Yorker
  6. Betsy Woodruff, The Coming Immigration War, The Slate
  7. George Skelton, California Legislature is looking more moderate due to voting reforms, The Los Angeles Times

Call for Papers

  1. The International Society for the History and Theory of Intellectual Property has issued a call for papers for a workshop titled “Openness and Intellectual Property” to be held on July 22-24, 2015 at the University of Pennsylvania.
  2. Leiden Journal of International Law has issued a call for papers for its symposium of “The Changing Role of Scholarship in International Law” to be held on May 11, 2015 at Hague.
  3. Centre for the Study of Social Exclusion and Inclusive Policy (CSSEIP) has issued a call for papers for the Indian National Seminar on “Six Decades of Indian Constitution and Inclusiveness” scheduled to be held in February, 2015 at University of Mysore.
  4. The Department of Public Law and Jurisprudence, University of Johannesburg has issued a call for papers for the seminar on The Rule of Law and Sustainable Development to be held on March 25, 2015, at Cape Town.
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Published on November 17, 2014
Author:          Filed under: Developments
 

Against All Odds: The Kurds, Comparative Constitutionalism and Kobane

Erin McGrath, University of Pittsburgh

While the world watches the conflict carry on in Kobane, just over the Turkish border with Syria, important facts are understated in the press. The Kobane battle is the latest front in the effort by the Islamic State (IS), an armed terrorist group, to reestablish the Islamic Caliphate across Iraq and Syria. Most observers are unaware that these events have much to do with comparative constitutional law; yet, democratic constitutionalism is at the crux of the conflict.

The importance of the outcome in Kobane lies not from a potential victory by a cruel terrorist group. Other states’ intervention choices are strategically complicated, but the largest repercussions frome Kobane will be those of apathy, not just a failed battle. Democracy supporters not defending Kobane today is similar to the banality of evil.[i] Rather than deference to totalitarianism, instead, we are blinded by the sensationalization of the battle, with media focus on bearded terrorists, hostage beheadings, Kurdish women fighters,[ii] jihadi brides. Inaction in Kobane, where democratic constitutionalism has risen against all odds, is simply unjustifiable.[iii] Yet constitutions are not “sexy;” municipal meetings are not “click-bait.”

The political violence in the Kurdish regions of Iraq and Syria has been occurring for much longer than this latest onslaught.[iv] Since the promise for an independent Kurdish region in the Treaty of Sevres, to its revocation in the Treaty of Lausanne, Kurds have been seeking a homeland. Their struggle has been violent. Over a century later, Kurdish political organization, epitomized in places like Kobane, represents one of only a few independence movements in the Middle East that show what democracy in the region could look like. Among the minorities across Northern Iraq and Northern Syria, just one group embraces democratic constitutionalism: the Kurds.

Read the rest of this entry…

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Published on November 14, 2014
Author:          Filed under: Analysis
 

Video Interview: Developments in Indian Constitutional Law Featuring Rohan Alva

Richard Albert, Boston College Law School

In this latest installment of our new video interview series at I-CONnect, I interview Rohan Alva on developments in Indian constitutional law.

In the interview, we discuss judicial review, current controversies in the separation of powers, the adjudication of socio-economic rights, the judicial use and non-use of comparative public law, access to courts, and children’s rights.

Rohan Alva is an Assistant Professor at Jindal Global Law School, where he directs the Center for Public Law and Jurisprudence. He is an expert in comparative public law and a frequent contributor to I-CONnect. He holds law degrees from Delhi and Harvard.

The interview runs for 22 minutes, and is available here.

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Published on November 13, 2014
Author:          Filed under: Developments
 

Writs but no Weapons? A Stocktake on Administrative Justice in Myanmar

Melissa Crouch, National University of Singapore and University of New South Wales (from December 2014)

The former Chief Justice Ba U of the Supreme Court of Burma once described the constitutional writs as ‘weapons’. The early years of independence in Burma were a time of significant judicial activism, when the Supreme Court did not hesitate to strike down executive decisions that were beyond the powers of decision-makers or that infringed on the rights of citizens. It also did not hesitate to grant applications for habeas corpus in situations of unlawful detention.

A year ago, I wrote about the striking developments that had taken place in terms of the constitutional writs in Myanmar, a country in which citizens had virtually no opportunities to bring complaints against the government to court from the 1970s to 2011.

A significant number of cases continue to be lodged with the Union Supreme Court of Myanmar, and over 500 applications have been lodge since 2011. This means that there have been far more writ cases lodged with the current Supreme Court (2011-) than there were with the previous Supreme Court (1948-1962) during the period of parliamentary period.

Several of these writ cases have been reported in the Myanmar Law Reports, which is a government-run annual publication that publishes a small number of Supreme Court decisions per year. While only six cases have been reported so far, all of these cases were unsuccessful.

There are three key features evident from these cases. First, all the cases concern the decisions of a lower court. While this is one possible function of the writs, it does suggest that the main role of the Supreme Court at present is to supervise decisions of lower courts, rather than decisions of the executive. Read the rest of this entry…

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Published on November 13, 2014
Author:          Filed under: Analysis
 

EU Accession to the ECHR: Ante Portas or a Mirage on the Horizon?

Christina Eckes, University of Amsterdam, reviewing Vasiliki Kosta, Nikos Skoutaris, and Vassilis Tzevelekos, The EU Accession to the ECHR (Hart Publishing 2014, 402pp)

Whether and when the European Union (EU) will accede to the European Convention on Human Rights (ECHR) remains to be seen. What is certain is that the possibility of EU accession to the ECHR and the relationship between the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECtHR) have been the subject of intense academic discussion for decades.

This book is a timely, well-researched and well-argued contribution to this body of literature. The Committee of Ministers took note of the draft accession agreement on 11 September 2013. Hence, the process of accession has just entered into a new stage, reaching a semi-definitive agreement that is worth analyzing and debating. At the same time, the date of accession is far from definitive with a request for an opinion of the CJEU pending and with the requirement of ratification of all 28 EU Member States.

From inter-disciplinarity to intra-disciplinarity

The book aims to offer an intra-disciplinary approach to accession, combining the perspectives of constitutional law, public international law and EU law. Indeed, legal scholarship is divided into subfields and sub-subfields that often conduct isolated debates amongst scholars with the same background and interest. The book is hence a welcome attempt to bridge these divides and to approach a topic of relevance in different subfields from the perspectives of several of these subfields. However, the next step and this is a step the book does not (fully) accomplish, would be to engage the different perspectives in a fruitful intra-disciplinary debate. The book consists of 23 individual chapters that indeed tackle the EU’s accession from the standpoint of three different legal subfields; yet, there is very little exchange between these different chapters or perspectives.

The structure

The book is divided into six parts, addressing different aspects of accession. It progressively zooms out, starting with a focus on specific institutional arrangements, including the co-defendant mechanism and prior involvement, to then slowly broaden the view to meta-questions such as pluralism to multilevel protection of human rights within Europe.

Read the rest of this entry…

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Published on November 11, 2014
Author:          Filed under: Reviews
 

What’s New in Comparative Law

Angélique Devaux, French Qualified Attorney (Notaire Diplômée), LL.M American Law (IUPUI Robert H. McKinney School of Law)

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

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

Developments in Constitutional Courts

  1. Libya: The Supreme Constitutional Court rules that general elections held in June were unconstitutional and that the country’s parliament and government, which were constituted from that vote, should be dissolved.
  2. Hungary: Supreme Court rules Budapest homeless decree too harsh.
  3. Oregon: Federal Court rules “secular humanism” a religion extends equal protection rights to atheists.
  4. Bangladesh: Supreme Court upholds death sentence for Islamist politician.
  5. Dominic Republic: The Dominican Republic withdraws from the Inter-American Court of Human Rights.
  6. Indiana: Supreme Court rules right to work law is constitutional.

In the News

  1. United Nations: Four judges elected to serve on International Court of Justice.
  2. European Court of Human Rights: Court rules that Czech competition authority is not authorized to enter business premises without a warrant.
  3. Armenia: The Constitutional Court of Armenia is due to examine the conformity of the treaty of Armenia’s accession to the Eurasian Economic Union to the country’s basic law.
  4. Uganda: The Ugandan government could introduce new wide-reaching anti-gay laws before the end of the year.
  5. Thailand: A criminal court sentenced university student to two-and-a-half years in prison for insulting King in Facebook post.
  6. Greece: Rabbinical divorce recognized.
  7. United States: Supreme Court agrees to hear new challenge to “Obamacare.”
  8. Alabama: Voters passed a constitutional amendment that bars the use of foreign law.
  9. Nevada: Voters approve the creation of an intermediate appellate court.

New Scholarship

  1. Katerina Pantazatou, Tax Secrecy and Tax Transparency: The Relevance of Confidentiality in Greek Tax Law (examining the Greek law’s approach to tax secrecy and tax transparency)
  2. Philip Hamburger, The Second Commerce Clause (theorizing the existing of a second Commerce Clause that calls into doubt the doctrine of the Dormant Commerce Clause)
  3. Nicola Lupo, Lucia Scaffardi, The Uses of Comparative Law in Legislative Drafting, Legislative Drafting, N. Lupo & L. Scaffardi (Eds.), Comparative Law in Legislative Drafting: The Increasing Importance of Dialogue Amongst Parliaments (Eleven Int’L Publishing 2014) (examining how legislatures make use of foreign law)
  4. Cora Hoexter and Morné Olivier, The Judiciary in South Africa, Juta Law, 2014 (evaluating the South African judiciary)
  5. Marc Blanquet,Francette Fines, Joel Andriantsimbazovina, Hélène Gaudin, Les grands arrêts de la Cour de Justice de l’Union européenne, T.1, Droit Constitutionnel et Institutionnel de l’Union Européenne, Dalloz-Grands Arrets (2014) (commenting on case law of the Court of Justice of the European Union) (in French)
  6. Christian Marxsen, The Promise of Global Democracy – The International Impact of Civil Society, New York University Journal of International Law and Politics, forthcoming (exploring how civil society organizations at the international level can help democratize international organizations and lawmaking processes)

Elsewhere on Blogs

  1. Lyle Denniston, Sixth Circuit: Now, a split on same-sex marriage, scotusblog.com
  2. Beth Van Schaack, South Africa Constitutional Court on Universal Jurisdiction: Validating the Obvious, Justsecurity.org
  3. Abbie Kamin, Photo ID Laws and the Nov. 4 Election: Discrimination Continues at the Polls, American Constitution Society for Law and Policy blog.
  4. Daniel Regan, Do we need a Global Constitution for a Globalised Age? The London School of Economics and Political Science blog
  5. Patt Morrison, The Berlin Wall takes a fall – 25 years on, Los Angeles Times
  6. Richard Kelsey, There is No Constitutional Right to Marriage … Of Any Kind, Jurist.org

Call for Papers

  1. The editors of the European Procurement & Public Private Partnership Law Review invite EU case law annotations for its upcoming issue.
  2. The Jean Monnet Chair of European Public Law, University in Zagreb-Faculty of Law calls for papers for the 13th Jean Monnet Seminar, EU Law and Risk Regulation, to be held on April 19-25, 2015 in Inter University Center, Dubrovnik.
  3. Columbia Law School’s Center for the Study of Law and Culture, theUniversity of Southern California Center for Law, History & Culture, UCLA School of Law, and Georgetown University Law School invite submissions for the eleventh meeting of the Law & Humanities Junior Scholar Workshop to be held at Columbia Law School on June 8 & 9, 2015.
  4. Transnational Dispute Management calls for papers for its special issue on the Comprehensive Economic and Trade Agreement between the European Union and Canada (CETA).
  5. ABA Section of International Law calls for articles for the spring issue of International Law News on the theme of South America.
  6. The Irish Society of Comparative Law and the School of Law of the University of Limerick calls for papers for its sixth annual conference of the ISCL to be held in Limerick on 5-6 June 2015.
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Published on November 10, 2014
Author:          Filed under: Developments
 

I•CON Debate Review by Brian Ray: Socio-Economic Rights and the Economic Crisis

[Editor’s Note: In this special installment of I•CONnect’s Review Series, Brian Ray offers a critical review of the I•CON debate between David Bilchitz and Xenophon Contiades & Alkmene Fotiadou on socio-economic rights and the economic crisis. The debate appears in the current issue of I•CON, beginning with Bilchitz’s paper here, followed by a reply by Contiades & Foutiado here, and concluding with a rejoinder from Bilchitz here. All three parts of the debate are available in full-text for free.]

Review by Brian Ray of I•CON Debate on Socio-Economic Rights and the Economic Crisis

Brian Ray, Cleveland-Marshall College of Law

The recent exchange between Professor David Bilchitz and Professors Xenophon Contiades and Alkmene Fotiadou in ICON’s pages over how courts should enforce social rights during times of economic crisis illustrates the decisive—and refreshing—shift away from the justiciability questions that long have dominated the comparative constitutional law discussion.  Starting as these authors do with the assumption that courts have a legitimate role enforcing social rights doesn’t resolve the democratic-legitimacy and institutional-competence objections, but it reorients them in a more practical and interesting direction that takes up Ran Hirschl’s call for comparativists to engage with the realities of how rights really work in practice.  It’s not enough to theorize about the hypothetical competencies of courts versus legislatures or the executive.  What really happens when a court intervenes?  Do different interpretive frameworks or remedies change these outcomes?  What conditions constrain or enable courts to intervene in these ways?

These authors use the recent global financial crisis as a “proving ground” for considering these practical questions.  Specifically they examine whether poor people are better protected against rights infringements in times of crisis by courts establishing substantively strong interpretations like the minimum-core standard or by relying on more flexible standards and techniques such as proportionality.

Read the rest of this entry…

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Published on November 8, 2014
Author:          Filed under: Uncategorized