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I·CONnect

Blog of the International Journal of Constitutional Law

Inherent Limits on the Override Power after the Israeli Election

Rivka Weill, Harry Radzyner Law School, IDC

Within the first twenty-four hours after the Israeli election, the future political partners of PM Netanyahu raised the demand to enact a general override clause as part of the Basic Laws. They believe that this override clause will empower them to govern without the intervention of the High Court of Justice. The Ultra-Orthodox parties hope to use the override to enact a statute that will exempt Ultra-Orthodox men from the mandatory army service. PM Netanyahu believes that the override may immunize him from criminal prosecution while in power. The enactment of a general override power will authorize the Israeli legislature (Knesset) to enact a statute stating explicitly that it is valid despite its infringement of constitutional rights and values. With such a declaration, the legislature will take public responsibility for its actions and at the same time immunize the statute from invalidation by the courts. A somewhat similar override clause exists in the Canadian Charter. No less than the authority to have the “last word” on the protection of constitutional rights and values is at stake. Will it be accorded to the Israeli courts or to the legislature? The political discussion is conducted as though all the issues are open to bargaining, from the very authority to override to the design of the override clause.

Granting the Israeli legislature a general override power is consistent with the constitutional history of the State of Israel prior to the constitutional revolution. During the founding era (1948-1992), the Knesset consistently overrode section 4 of Basic Law: The Knesset, which guarantees equal elections, and requires 61 Members of Knesset (MKs) to amend it. When the Court invalidated a law for violating section 4 of the Basic Law, the Knesset often re-enacted the law by a majority of 61 MKs, declaring that “to remove any doubt” the law is retroactively effective from the date of its original enactment. The Knesset paid “lip service” to judicial review power during this period, and the Court, including Justice Barak, approved the legitimacy of this practice.[1]

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Published on April 18, 2019
Author:          Filed under: Analysis
 

Indonesia’s Pesta Demokrasi in the Face of Regressing Constitutional Democracy

Dian A H Shah, National University Singapore Faculty of Law

[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 2019, see here.]

On April 17, Indonesians will head to the polls for the first time since the 20th anniversary of the 1998 Reformasi movement that led to the end of Suharto’s authoritarian rule. The significance of the upcoming elections, however, goes beyond this. It could well be the most important ‘democracy fest’ (pesta demokrasi) that the country has ever witnessed – one that is set against the backdrop of regressing democratic and constitutional values.

For the first time in Indonesian history, the president, vice-president, and members of the legislature (Dewan Perwakilan Rakyat, DPR) will be elected on the same day. Previously, in 2004, 2009, and 2014, legislative elections preceded presidential elections.[1]  This sequence is significant because even though the president and vice-president are directly elected, the results of the legislative elections have been important in helping candidates to gauge and cobble together their support base for the presidential elections. This arises from the strict presidential nomination requirement in Indonesia’s elections law, which stipulates that to be eligible, presidential candidates must be nominated by political parties or a coalition of parties with at least 20 per cent of seats in the legislature or with at least 25 per cent of total valid votes from the legislative elections.

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Published on April 17, 2019
Author:          Filed under: Developments
 

What’s New in Public Law

Simon Drugda, PhD Candidate at the University of Copenhagen

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 UK Supreme Court held that citizens of Zambia could sue a mining company in the UK.
  2. The Constitutional Court of Moldova upheld an amnesty law that granted release from prison to mothers of children under the age of eight, but not an equal right to fathers.
  3. The Constitutional Court of South Korea found an anti-abortion law that made it a crime punishable by up to two years in prison unconstitutional. The Parliament has until the end of 2020 to revise the law.
  4. The Supreme Court of the Philippines halted the cutting and balling of trees in expansion plans of a popular mall in Baguio City until it complies with environmental requirements.
  5. The European Court of Human Rights delivered its first advisory, holding that states need not register the birth certificate of a child born through gestational surrogacy abroad to establish the legal parenthood of the intended mother, as adoption may be a means of recognizing that relationship.
  6. The European Court of Human Rights requested a reply from Russia to two cases initiated by the relatives of people who were killed in the downing of the Malaysia Airlines flight MH-17. They allege that Russia was directly or indirectly responsible.

In the News

  1. The UK considers new online safety laws. Companies will have a “duty of care” to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services.
  2. The European Union expressed its support for the International Criminal Court after the US revoked the entry visa of ICC’s chief prosecutor Fatou Bensouda over a probe into US soldiers’ actions in Afghanistan.
  3. The National Assembly of Cuba met in extraordinary session to enact the New Constitution, ratified a referendum in February.
  4. Sudanese President Hassan al-Bashir has been removed from office.
  5. The Vatican announced that the draft apostolic constitution governing the workings of the Roman Curia will be set for consultation to bishops’ conferences around the world.
  6. A Hong Kong court found nine members of the 2014 pro-democracy “Umbrella Movement” guilty of charges including conspiracy and inciting a public nuisance. The Court did not immediately announce sentences for the charges.

New Scholarship

  1. Brian Christopher Jones, Our Forgotten Constitutional Guardians: Preserving Respect for the Law, Statute Law Review (2019) (exploring the role of bill drafters within the Office of Parliamentary Counsel and senior clerks within the House of Commons in protecting the UK constitution)
  2. Heller Porsdam, The Transforming Power of Cultural Rights: A Promising Law and Humanities Approach (2019) (arguing that cultural rights offer a useful international arena and discourse in which to explain and negotiate cultural meanings when controversies arise)
  3. Jed Odermatt, The International Court of Justice and the Court of Justice of the European Union: Between Fragmentation and Universality of International Law, in Achilles Skordas (ed), Research Handbook on the International Court of Justice (2019 forthcoming) (discussing how the Court of Justice of the European Union has used judgments of the International Court of Justice in its legal reasoning)
  4. Andrew Coan, Rationing the Constitution:  How Judicial Capacity Shapes Supreme Court Decision-Making (2019) (explaining how judicial caseload shapes the course of American constitutional law and the role of the Court in American society)
  5. Carissima Mathen, Courts Without Cases The Law and Politics of Advisory Opinions (2019) (examining the role of the Supreme Court of Canada in issuing advisory opinions)

Call for Papers and Announcements

  1. The Democratic Decay Resource (DEM-DEC), which has been renamed Democratic Decay & Renewal (DEM-DEC), released its ninth Global Research Update on democratic decay (April 2019 – available here), containing new research worldwide from March and early April 2019; items suggested by DEM-DEC users; a rapidly expanding list of forthcoming research; and a list of new resources added to the Links section. A post introducing the Update was published on the IACL-AIDC Blog on Thursday 11 April, and will shortly be published on Verfassungsblog.
  2. The University of Maastricht invites applications for an Assistant Professorship in European and/or Comparative Administrative Law. The Faculty invites applicants who have an interest specifically in either of these two research themes: 1) Digital legal studies: building technology for law and 2) Law in a globalizing society: regulation and protection.
  3. The Italian Chapter of the ICON-S invites submission for its conference on “New Technologies and the Future of Public Law,” to be held in Florence, on November 22-23. The deadline for submissions is July 10, 2019.
  4. The University of Copenhagen invites applications for two teaching position in Advanced EU Constitutional Law and European Data Protection Law. The deadline for applications is September 1, 2019.
  5. The Católica Law Review invites submissions for the 2020 January thematic issue on “(Re)Inventing the State in the 21st Century.” The deadline for submissions is September 30.
  6. The UCL Journal of Law and Jurisprudence invites submission for its Autumn 2019 issue. The extended deadline for paper submissions is April 26.

Elsewhere Online

  1. Lénárd Sándor, ‘Constitutional education is key in addressing the constitutional challenges of our time’ – conversation with Professor Jeffrey Rosen, President of the National Constitution Center, precedens.mandiner
  2. David R. Cameron, 48 hours before no-deal Brexit, European Council gives UK an extension to Oct. 31, Yale MacMillan Center
  3. Zachary Elkins, How powerful is the US president? A look at other constitutions explains why American executives are so ineffectual, Vox
  4. Rick Pildes, What is Judicial Courage?, Balkinization
  5. Anna Olijnyk, Joint sittings, common fund orders and comity, AUSPUBLAW
  6. Pierre de Vos, Why there is no legal duty on ANC candidates to withdraw from election lists if instructed to do so, Constitutionally Speaking
  7. David Howarth, Westminster versus Whitehall: Two Incompatible Views of the Constitution, UK Constitutional Law Association
  8. David Vitale, Leaving the EU: A Matter of “Trust”?, UK Constitutional Law Association
  9. Renáta Uitz, What Does the Spring Bring for the Rule of Law in Europe?, Verfassungsblog
  10. Sandipto Dasgupta, The Indian Constitution did not stem from a revolution but envisioned one. So why didn’t it happen?, Scroll+
  11. Gautam Bhatia, The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features, Indian Constitutional Law and Philosophy
  12. Chrystie Swiney, Undemocratic Civil Society Laws are Appearing in Democracies, OpenGlobalRights
  13. Karen Yeung, Machine Decision-making in the criminal justice system: The FATAL4JUSTICE? Project, OxHRH
  14. Sarah Steele, Christopher Markou and Tyler Shores, Technology may be making us unhealthy and miserable – governments must act now, The Conversation
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Published on April 15, 2019
Author:          Filed under: Developments
 

Hong Kong’s Quasi-Constitutionalities: Part 1

–P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong.

Richard Albert and Joel Colón-Rios’ edited volume on Quasi-Constitutionality and Constitutional Statutes (Routledge 2019) considers a variety of means by which a statute can become or be treated as “entrenched”, “constitutionally significant” or otherwise having a “constitutional status”. This can be because, as Rivka Weill considers in Chapter 3 of the volume, such a statute was enacted to prescribe judicially enforced standards (usually fundamental human rights standards) that would require a Parliamentary response; or as Lael Weis considers in Chapter 9, such a statute was required to be enacted by reason of a provision in the country’s Constitution.

Hong Kong, a Special Administrative Region of the People’s Republic of China, has a bit of both, under its constitutional instrument, the Basic Law.

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Published on April 13, 2019
Author:          Filed under: Analysis
 

Bolsonaro’s Unconstitutional Support for the Brazilian Civil-Military Dictatorship of 1964-1985

Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development;Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Jair Bolsonaro was recently elected in an election tainted, particularly, by his long-held defense of the Brazilian dictatorship of 1964-1985. Once he took office, despite the large number of former military officers in his cabinet, some argued that he would inevitably be tamed by reality and would act as a statesman.  However, in addition to his many mistakes in political coordination and nominations for high positions, Bolsonaro seems unwilling to abandon the ideological discourse of his campaign, even while his government proves to be very erratic.  As if we were back in the 1960s, the strategy is to stress polarization between the left-wing (or communists, as he prefers) and right-wing in all areas, from education to international relations. As he said in his U.S. visit, “We have to deconstruct, undo many things before we can even start.”

In recent weeks, however, such polarization reached new highs. March 31, 2019 marked 55 years since the coup d’état of 1964 that inaugurated the Brazilian civil-military dictatorship. According to Bolsonaro, the date of the coup d’etat should be celebrated. Presidential spokesman General Otávio Barros said that Bolsonaro does not consider 1964 a coup and ordered the Ministry of Defense to make the “due commemorations.” On a TV show, Bolsonaro delivered an interview where he criticized the role of Brazilian Truth Commission and argued that “only a few problems” happened during the dictatorship, that the military are the true guarantors of democracy, and that the decrees of that era were better than democratically-approved legislation. The presidential order and further declarations sparked negative reactions from civil society groups, but also of the Federal Prosecutors’ Office, which sent recommendations in 19 states to military officials declaring the unconstitutionality and illegality of any celebration. Still, invitations to authorities were sent alluding to the commemoration of the 55 year anniversary of the “democratic revolution” of 1964. Also, a video in which an actor says the military saved Brazil was shared by the president’s office on March 31,  2019. Brazilian courts refused to stop the government propaganda and the presidency defended the argument denying the coup per an United Nations expert on truth and memory.

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Published on April 12, 2019
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Conference Report: « Le droit global existe-t-il ? » — University of Louvain

Alicia Pastor y Camarasa, PhD Candidate, Centre de recherche sur l’Etat et la Constitution (CRECO), University of Louvain (Belgium)

Reviving the tradition of medieval disputatio, Professors Sophie Weerts and Céline Romainville convened a debate at the University of Louvain around globalization and public law under the title, Does Global Law Exist?, with Professors Maxime Saint-Hilaire (University of Sherbrooke) and Benoît Frydman (Free University of Brussels). What follows is a summary of the key issues that emerged from intensive debate, where two radically different perspectives were proposed on how to defend the Rule of Law [l’Etat de droit][1] from the threats emerging from globalization. The debate revolved around questions regarding the nature of global law, the state, the role for lawyers, and the fairness of global law. It can be seen in full – here.

Benoît Frydman embraced a pragmatist approach, arguing that any norm with legal consequences is thus a legal norm. He referred to all these non-formal legal norms as “U.L.O.s” or “Unidentified Legal Objects”. These norms go beyond state law and include what is traditionally gathered under soft law; such as, guidelines, recommendations, labels, and indicators produced by both public and private actors. He argued that legal scholars and actors (i.e. judges and lawyers) should think of these norms as law, as this is the only pathway through which these norms – currently emerging in the global realm – can be controlled and submitted to the Rule of Law. Frydman ultimately advocated for the legal community to dive into these different normative orders.

Maxime Saint Hilaire chose an opposite strategy. As a fierce critic of legal pluralism and ‘panjuridism’ (which pushes us to see law everywhere), he argued that, in order to protect the Rule of Law, it is essential to stick to the rule of recognition, which allows legal rules to be distinguished from other normative orders. In contrast to Frydman, he proposed that legal inquiry should be devoted to formal sources of law – that is, rules recognized by the state – and that this is a necessary condition for the survival of the Rule of Law as a principle grounded in political values. It follows that he defended the role of lawyers as actors fighting for a more formal, rather than substantive, form of justice.

As public lawyers facing the challenges and the effects of globalization on public law, the questions raised by these two different strategies invite us all to take a step back and engage in self-reflection. How should we define our project of inquiry as public lawyers? Should we engage with actors beyond judges and the legislature? Where should we draw the line? Should we limit our role as defenders of formal modes of justice, or should we consider the law to be a tool of emancipation and protection for those who have traditionally been marginalized and invisibilized by public law given their gender, race, sexual orientation, ability, geographical location (ie the Global South)? Should we engage in a pragmatic way with the effects of globalization, or should we refine the conceptual tools we already have at our disposal, such as the rule of recognition, to preserve the Rule of Law and the political values underpinning it?

Related Publications

Benoit Frydman with Jean-Yves Chérot, La science du droit dans la globalisation, Bruxelles, Bruylant, 2012.

with L. Hennebel, G. Lewkowicz, “Coregulation and the Rule of Law”, avec in E. Brousseau, M. Marzouki., C. Meadel, (dir.), Governance, Regulation and Powers on the Internet, Cambridge University Press, 2012.

“L’évolution des normes de scientificité en droit”, in Hélène Desbrousses , Normes de scientificité et objet des sciences sociales, Paris, L’Harmattan, 1997, pp. 91-109

Maxime Saint Hilaire, “Standards constitutionnels mondiaux : épistémologie et méthodologie”, in Mathieu Disant, Gregory Lewkowicz et Pauline Türk (dir.), Les standards constitutionnels mondiaux, Bruxelles, Bruylant, 2017, p. 11-75.

“Global Standards of Constitutional Law: What Knowledge? Which Method?”, in Asma Ghachemet Henri Pallard (dir.), Une Cour constitutionnelle internationale au service du droit démocratique et du droit constitutionnel, actes du colloque de Rabat des 16-17 juin 2015, Beyrouth, Konrad Ademauer Stiftung, 2016, p. 23-28.

“The Study of Legal Plurality outside “Legal Pluralism”: The Future of the Discipline?”, in Shauna Van Praagh et Helge Dedek (Eds), Stateless Law: Evolving Boundaries of a Discipline, Farnham (UK), Ashgate Pub, 2015, p. 115-132.


[1] See M. Loughlin, “Chapter 11. Rechtsstaat, Rule of Law, l’Etat de droit”, Foundations of Public Law (Oxford University Press, 2010).

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Published on April 12, 2019
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Same Sex Marriage in the Cayman Islands

Derek O’Brien, Senior Lecturer, Truman Bodden Law School, and Rhian Minty, Assistant Director, Truman Bodden Law School

In its recent judgment in Day and Bush v The Governor of the Cayman Islands  (Day and Bush), the Grand Court of the Cayman Islands has declared that the Marriage (Amendment) Law 2008 (Marriage Law), which defines marriage as a union between a man and a woman, violates multiple provisions of the Bill of Rights Chapter of the Cayman Islands Constitution by denying same sex couples the right to marry.

The judgment in Day and Bush follows hard on the heels of the judgment of the Court of Appeal of Bermuda in Ferguson v AG Bermuda. The Bermudian court had been ruled that a provision of the Domestic Partnership Act (s53)–which held that a marriage is void unless the parties are male and female–was unconstitutional on the grounds that it had been enacted for a religious purpose and that it violated the right to freedom of conscience of same sex couples, in particular their belief in same sex marriage, pursuant to s8 of the Bermudian Constitution.

It is hoped by supporters of LGBT+ rights that the combined effect of these judgments will force the UK’s other Caribbean Overseas Territories (COTs)–Anguilla, British Virgin Islands, Montserrat and Turks and Caicos–to amend their Marriage Laws to  provide for same sex marriage, and thus bring these delinquent COTs in line with the remainder of the UK’s Overseas Territories, all of which permit same sex marriage.  

Though the judgment in Day and Bush marks a significant milestone for LGBT+ rights in the Caribbean, we wish to focus in this post not on the issue of same sex marriage itself, but rather on the constitutional arguments that persuaded the Grand Court to declare that Cayman’s Marriage Law was incompatible with the Constitution.

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Published on April 11, 2019
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Conference Report–Global Constitutionalism: Asia-Pacific Perspectives

–Bui Ngoc Son, Assistant Professor, Chinese University of Hong Kong Faculty of Law

On 28-29 March 2019, The Chinese University of Hong Kong Faculty of Law hosted a Symposium on “Global Constitutionalism: Asia-Pacific Perspectives.” The Symposium brought together a diverse group of scholars to discuss how polities in the Asia-Pacific region respond to the global spread of ideas and institutions of constitutionalism, and why they respond in a certain way.

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Published on April 10, 2019
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Attacking Judicial Independence Through New “Disciplinary” Procedures in Poland

Piotr Mikuli, Professor and Head of Chair in Comparative Constitutional Law, Jagiellonian University in Kraków, Poland

The close relationship between the political branches of the government and judiciary undoubtedly raises questions about the real level of judicial independence in Poland. By working in tandem with the hijacked National Council of the Judiciary and the Constitutional Tribunal,[1] as well as by strengthening the role of the Minister of Justice, the Polish politicians of the ruling party are exerting influence at almost all stages of appointments, promotions, and disciplinary proceedings for judges.[2] The recently created mechanism of disciplining judges is being used regularly and seems to have intensified.

Until recently, the incumbent Minister of Justice, Zbigniew Ziobro, would merely warn judges that they would suffer consequences, for example, for their attempts to decide on the constitutionality of statutes, or in situations in which, according to him, they are reluctant to obey the law. But recently the oral warnings have escalated into practical implementation. Under the guise of building more transparent and just rules for individual judicial accountability, actions taken by the authorities against judges courageously defending the constitution aim to intimidate the entire judicial system.

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Published on April 9, 2019
Author:          Filed under: Developments