Blog of the International Journal of Constitutional Law

Special Undergraduate Series–Using International Law in Indian Constitutional Adjudication

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

–Shubhangi Agarwalla, B.A., LL.B. Student (Hons.), National Law University, Delhi

Since the late 1970s, the Supreme Court has, on the basis of Article 51 of the Constitution of India, started articulating a sense of obligation towards applying international law in its decisions. The high visibility of the cases in which the Court has called upon international law has brought a lot of attention to this practice.

Historically, the doctrines of monism and dualism have been used to understand the relationship between the international and the domestic order. According to monist approaches, international law ought to be automatically incorporated into the domestic legal order, without the requirement of any additional act of adoption or transformation by the state. On incorporation, international law is slotted into the hierarchy of legal sources applicable within the domestic legal order. Dualists however believe that international and domestic laws operate in distinct spheres and so the only mechanism for the transformation of international law into domestic law is through the medium of regular domestic law-making processes. As doctrines, monism and dualism are formalistic constructs that fail to reflect the numerous ways in which global legal interactions take place, especially in light of the increasing overlap of the international and domestic legal orders. However, they are given importance by various state authorities. India, for example, allocates powers in relation to international law along the dualist paradigm. The relevant part of Article 51 exhorts the state, and not the courts, “to foster respect for international law and treaty obligations in the dealing of organized people with one another.”  The Constitution Assembly debates barely shed any light on the intent, scope, or content of the provision. In fact, while introducing the draft article for discussion, Dr. Ambedkar, the Chairperson of the Drafting Committee, stated that, “[t]he propositions contained in this new article are so simple that it seems to be super-arrogation to try to explain them to the House by any lengthy speech.”

Interestingly, an argument can be made that the purpose of Art. 51 was never meant to be enforced by the judiciary to invoke international norms.

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Published on December 26, 2018
Author:          Filed under: Analysis

What’s New in Public Law

–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School of Law

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

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email

Developments in Constitutional Courts

  1. The Constitutional Court of Moldova ruled that there is no competition between the President and the Parliament in Defense Policy.
  2. Sri Lanka’s Supreme Court ruled that President Maithripala Sirisena’s order to dissolve Parliament and hold new elections was unconstitutional.
  3. The Supreme Court of the United States refused to allow Trump administration to immediately enforce its new policy of denying asylum of migrants who illegally cross the Mexican borders
  4. A federal judge in Texas ruled Obamacare unconstitutional.
  5. Ontario Court ruled law of Bangladesh applies to Rana Plaza Collapse Claim.
  6. Turkey’s Constitutional Court ruled university headscarf ban violated student’s right to education

In the News

  1. Indiana’s Attorney General filed a brief asking the United States Supreme Court to uphold the constitutionality of Indiana abortion law of 2016.
  2. Missouri is moving to legalize medical marijuana.
  3. The Cuban Assembly approved draft of new constitution.
  4. President Donald Trump signed criminal justice reform into law.
  5. Georgia’s new constitution, originally adopted in 2017, has now come into force.

New Scholarship

  1. Nikolaos A. Davrados, Louisiana My Home Sweet Home : Decodifying Domicile, 64 Loy. L. Rev. 287 (2018) (exploring the notion and functions of domicile of natural persons in Louisiana and in a comparative perspective)
  2. Ole W. Pedersen, Environmental Law and Constitutional and Public Law, Jorge Vinuales and Emma Lees (eds), Oxford Handbook on Comparative Environmental Law (OUP 2019) (examining the relationship between environmental law and public law)
  3. Joel K. Goldstein, Teaching The Transformative Fourteenth Amendment, 62 Saint Louis University Law Journal (2018) (Explaining the Fourteenth Amendment)
  4. Rivka Weill, The Strategic Commonlaw Court of Aharon Barak and Its Aftermath : On Judicially-led Constitutional Revolutions and Democratic Backsliding, Journal of Law & Ethics of Human Rights (2019) (explaining the tactics and strategy used by Barak to revolutionize Israeli constitutional law)
  5. Emmett Macfarlane, Policy Change, Courts, and the Canadian Constitution (University of Toronto Press 2018) (aiming to further our understanding of judicial policy impact and the role of the courts in shaping policy change)
  6. Michael Hein, Entrenchment Clauses in the History of Modern Constitutionalism, 86 Legal History Review (examining the origins, differentiation, and migration of constitutional entrenchment clauses from the beginning of modern constitutionalism until today)
  7. Sharon Yadin, Regulatory Shaming, 49 Environmental Law (forthcoming 2019) (exploring shaming by administrative agencies from a normative perspective and suggesting that shaming can be a legitimate, efficient, and democratic regulatory approach, and general considerations for utilizing shaming tactics)

Calls for Papers and Announcements

  1. The American Society of Comparative Law – Younger Comparativists Committee calls for papers for its 8th Global Conference to be held in Montreal, Canada on May 10-11, 2019.
  2. The Commonwealth Law Conference will host a conference in Livingstone, Zambia from April 8th to 12th, 2019. The theme of this 21st Commonwealth Law Conference is “The Rule of Law in Retreat? Challenges for the Modern Commonwealth.”
  3. The Central European University in collaboration with the International IDEA, Friedrich Ebert Stifung and the African Network of Constitutional Lawyers call for applications for its summer programme on Consitution-Building in Africa.
  4. The Bonavero Institute of Human Rights calls for papers for a workshop for early career-researchers on the topic of Political Parties, Partisanship, and the Constitution, with the generous support of the Programme for the Foundations of Law and Constitutional Government to be held on March 14-15, 2019 in Oxford, United Kingdom.
  5. The University of Verona calls for papers for a conference on “Islands and Remoteness in Geography, Law, and Fiction” to be held in Verona, Italy of November 22-23, 2019.
  6. The Department of Constitutional Law and Political Sciences, Faculty of Law and Political Sciences, Széchenyi István University calls for application for its Winter Seminar 2019 on European Values vs Central European Realities.
  7. The International Academy of Comparative Law calls for papers for a conference to be held in Paris, France in 2019.
  8. The European Jounal of International Law calls for papers for its 30th Anniversary Symposium.
  9. OxonCourts, an interdisciplinary group of early career researchers at the University of Oxford, organises its first annual “Judicial Studies Graduate Colloquium,” to be held at Wolfson College, on March 1, 2019. The deadline for submission of abstracts is January 11, 2018. Doctoral students from all disciplines, who research courts are invited to apply.
  10. IE University has an opening for a position in Comparative Public Law.

Elsewhere Online

  1. Stephen Wermiel, SCOTUS for Law Students : President George H. W. Bush’s Supreme Court legacy, SCOTUSblog
  2. Lyle Denniston, All sides agree that Obamacare is Safe – For Now, Constitution Daily
  3. Oliver Garner, Ruvi Ziegler, Mark Lazarowicz, Dora Kostakopoulou, Mini Symposium : EU Citizenship in the shadow of Brexit : Introduction, Part I, Part II, Part III and Part IV, European Law Blog
  4. Claire R. Thomas, Distracting from the Actual Crisis : The Proposed Asylum Ban, Verfassungblog on Constitutional Matters
  5. David A. Andelman, Commentary : Congo election shows flaws in Trump’s Africa Strategy, Reuters
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Published on December 24, 2018
Author:          Filed under: Developments

Book Review: Alexander Hudson on “The UK Constitution After Miller: Brexit and Beyond”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alexander Hudson reviews Mark Elliott, Jack Williams & Alison L Young (eds.), The UK Constitution After Miller: Brexit and Beyond (Hart 2018).]

–Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity, Fellow Group “Comparative Constitutionalism”

In a very timely volume, Mark Elliot, Jack Williams, and Alison L. Young have assembled eleven essays that consider the impact of the United Kingdom Supreme Court’s judgment in R (Miller) v Secretary of State for Exiting the European Union[1] on the Brexit process, the United Kingdom (UK) constitution, the manner of constitutional adjudication in the UK, and indeed the impact upon the Supreme Court itself. The authors of the various chapters include both scholars and practitioners, and provide a wide range of views on the various merits and demerits of the litigation and of the judgment delivered by the Supreme Court. Two of the authors were directly involved in the litigation. The combination of first-hand views and scholarly analysis by some of the UK’s leading law professors makes this volume an authoritative resource on the Miller judgment and its broader importance for the UK constitution.

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Published on December 21, 2018
Author:          Filed under: Reviews

Rare, or Under-Cooked? The Appeal Ruling in the Urgenda Climate Change Case

James Fowkes, University of Münster 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 2018, see here.]

Back in May, I wrote here about climate change litigation. I drew attention to, among others, the appeal hearing in the Dutch Urgenda case.[1] By now, we have the judgment.[2]

The headline is that the Dutch government’s appeal was rejected. And some standard journalistic copy applies. This is a praiseworthy effort by a civil society organization to deal with a pressing problem. The judgment makes a number of findings that will be of use to other litigants elsewhere, especially in the context of EU emissions mechanisms and the European Convention on Human Rights. And it took judicial courage, and an admirable sense of global citizenship, for the Hague Appeal Court to uphold the lower court’s decision.

But that said – and that part should be said – the finer print of this judgment also merits critical comment. Though it may seem an odd thing to say about a bold decision in a ground-breaking litigation, the judgment reflects quite a conservative view of the judicial role – and as such, may not have done enough to underpin the boldness of its order.

Let me hasten to explain.

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Published on December 19, 2018
Author:          Filed under: Developments

What’s New in Public Law

Sandeep Suresh, Faculty Member, Jindal Global Law School

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

Developments in Constitutional Courts

  1. The Indian Supreme Court ordered that death row convicts are entitled to meet his family members, friends, lawyers, and doctors like other convicts.
  2. An Egyptian court will hear a petition challenging the existence of limits on presidential terms.
  3. Bolivia’s apex electoral court allowed President Evo Morales to contest presidential elections which will enable him to capture a fourth term in office despite a 2016 referendum vote against more than two consecutive terms for presidents.
  4. The Zambian Constitutional Court held that President Edgar Lungu can contest the presidential election in 2021 as he had not served a full term between 2015 and 2016.
  5. The Sri Lankan Supreme Court held that President Sirisena’s move to dissolve Parliament and conduct new elections was unconstitutional.

In the News

  1. The House of Representatives in Nigeria considered a bill to amend the 1999 Constitution and reintroduce the parliamentary system of government.
  2. Villagers in Chipinge, Zimbabwe sued an ethanol producing company for violating their fundamental rights like the right to agricultural land (Section 72 of the Constitution) by barring them from tilling their fields or accessing it without any legal basis.
  3. The President of Mexico proposed a law to put an end to presidential immunity from criminal prosecution in corruption cases.
  4. The King of Jordan ordered his government to formulate general pardon law to ease the pressures on citizens.
  5. A report by the Sixth Amendment Center revealed that the Oregon’s Public Defense system which is constitutionally required to provide effective counsel for indigent clients is so bureaucratic and structurally flawed.

New Scholarship

  1. Tzu-Yi Lin, Ming-Sung Kuo & Hui-Wen Chen, Seventy Years On: The Taiwan Constitutional Court and Judicial Activism in a Changing Constitutional Landscape, 48 Hong Kong Law Journal 995 (2018) (shedding new light on the relationship between the Taiwan Constitutional Court’s activism and the larger political transition to democracy)
  2. Symposium on the Universal Declaration of Human Rights and the Future of Being Human, American Journal of International Law (Vol.112, 2018) (seven essays focusing on how to recast the Universal Declaration of Human Rights for the challenges posed by new technologies).
  3. Michael Dafel, The Constitutional Rebuilding of the South African Private Law: A Choice Between Judicial and Legislative Law-Making, Apollo – University of Cambridge Repository (2018) (arguing that legislative schemes that give effect to constitutional rights are likely to contain an array of benefits that are absent or reduced in the judicial law-making process).
  4. Xin Zhang, Towards the Rule of Law: Judicial Control of Administrative Discretion in a Comparative Context, University of Hong Kong, Faculty of Law (December 2018) (comparing judicial control of administrative discretion in the UK and China and arguing that despite the gap, China still has a tendency toward judicial initiative, which entails the “thick” meaning of the rule of law).
  5. Swati Jhaveri, Advancing Constitutional Justice in Singapore: Enhancing Access and Standing in Judicial Review Cases, Singapore Journal of Legal Studies (2017) (showing how the Singapore courts have provided some scope for developing a more circumscribed form of ‘representative’ standing in serious cases of illegality or unconstitutionality while ensuring that the court does not become involved in free-standing political debate).
  6. John William Draper, Preserving Life by Ranking Rights, 82 (157) Albany Law Review (2018/2019) (assessing various battlegrounds within the right to life like border walls, abortion, and the death penalty in order to rank groups of constitutional rights).
  7. Samuel Issacharoff, Judicial Review in Troubled Times: Stabilizing Democracy in a Second Best World, NYU School of Law, Public Law Research Paper No. 18-51 (2018) (analyzing the role of judicial review especially in a time of populist challenges to the institutionalization of democratic politics).
  8. Piet Hein van Kempen and Joeri Bemelmans, EU Protection of the Substantive Criminal Law Principles of Guilt and Ne Bis in Idem Under the Charter of Fundamental Rights: Underdevelopment and Overdevelopment in an Incomplete Criminal Justice Framework, 9 (2) New Journal of European Criminal Law (2018) (examining the protection of fundamental rights by European Union law in the field of substantive criminal law and comparing it to the protection offered by the European Court of Human Rights (ECtHR)).

Calls for Papers and Announcements

  1. Melbourne Law School (MLS) is inviting applications from early career researchers for the ‘Indian Equality Law Visiting Fellowship’. During their fellowship (4-5 weeks in Melbourne), each fellow will be expected to finalise a 10,000-word research paper on any aspect of Indian equality or anti-discrimination law, under the supervision of Associate Professor Tarunabh Khaitan. Interested candidates should send their applications to Ms. Kathryn Taylor ( by February 1, 2019.
  2. The Bonavero Institute of Human Rights, University of Oxford is inviting papers from early career researchers for their workshop on ‘Political Parties, Partisanship, and the Constitution’. The workshop will be held from March 14-15, 2019 in Oxford. Interested scholars must abstracts of their papers to by January 11, 2019.
  3. University of Michigan Law School is inviting papers from junior scholars for the 5th Annual Junior Scholars Conference. The conference will be held from April 26-27, 2019 in Ann Arbor, Michigan. Interested participants should submit abstracts of their papers to by January 12, 2019.
  4. The Mahindra Humanities Center at Harvard is inviting applications for one-year (2019-2020) postdoctoral fellowships in connection with the Center’s Andrew W. Mellon Foundation seminar on the topic of ‘Migration and the Humanities’. Applicants must have received a doctorate or terminal degree in or after May 2016. Applicants without a doctorate or terminal degree must demonstrate that they will receive a doctorate or terminal degree in a related discipline in or before August 2019. Applications must be sent in by January 2, 2019.
  5. Submissions are welcome a Workshop on ‘Constitutional Resilience in South Asia’. The workshop will be held from December 5-7, 2019 in Melbourne. Interested scholars must submit their paper proposals, a list of bibliographical references, and CV to Ms. Kathryn Taylor ( by February 15, 2019.

Elsewhere Online

  1. Paul Kildea, ‘Getting to ‘Yes’: Why our approach to winning referendums needs a rethink’, AUSPUBLAW
  2. Jaclyn L Neo and Wilson Tay Tze Vern, Restoring the Independence and Integrity of Malaysia’s Judiciary: Proposals for Reform and Challenges Ahead, Constitutionnet
  3. David R Cameron, Theresa May delays Brexit vote, seeks “further reassurances” on “backstop,” and survives no confidence vote, The Yale MacMillan Center
  4. Alma Stankovic, The Tale of Two Citizenships, Verfassungsblog
  5. Suhrith Parthasarathy, Criteria for the courts: on the appointment of judges, The Hindu
  6. Irina Crivet, ECtHR or CEDAW: Spoilt for Choice in Moldova?, Strasbourg Observers
  7. Lyman Stone, Is the U.S. Political System Really ‘Structurally Biased’?, National Review
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Published on December 17, 2018
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I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court—Has Taiwan’s Constitutional Court Fostered Sex/Gender Equality? A Closer Look at its Leading Cases

[Editor’s Note: This is the Final Part of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here, Part I is available here, Part II is available here, and Part III is available here.]

–Wen-Chen Chang, National Taiwan University College of Law

Taiwan’s sex/gender equality has been substantially improved in recent years. In 2016, the first woman president was elected. The present legislature has 43 female members among 113 total members, reaching nearly 40%. The number of female justices in Taiwan’s Constitutional Court is at record high, four out of fifteen justices. The advancement of sex/gender equality has been primarily in the areas of civil and political rights but not quite so in the areas of economic, social and cultural rights. Women continue to face serious discrimination in the employment, market and family.

Constitutional provisions and a few recently incorporated international human rights instruments including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW) are pivotal to the advancement of sex/gender equality. Article 7 of the Constitution provides that all citizens irrespective of sex, religion, race, class or party affiliation should be equal before the law. Article 134 of the Constitution stipulates a quota system for women representatives in local legislatures. An amendment was added in 2005, requiring the number of female members for proportional seats in the national legislature no less than a half. The government was also obligated to “protect the dignity of women, safeguard their personal safety, eliminate sexual discrimination, and further substantive gender equality” in Article 10 of the Additional Articles to the Constitution.

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Published on December 15, 2018
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I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court—The Evolution of Proportionality in Taiwan Constitutional Jurisprudence

[Editor’s Note: This is Part III of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here, Part I is available here, and Part II is available here.]

–Chien-Chih Lin, Assistant Research Professor at Institutum Iurisprudentiae, Academia Sinica

Recent decades have witnessed the migration of the proportionality principle around the world to the extent that it has become the most dominant and powerful interpretive weapon in the judicial arsenal in most countries, and Taiwan is no exception. In fact, Taiwan may be one of the best cases to study proportionality because of three reasons. First, the Taiwan Constitutional Court has exercised the power of judicial review in the past seven decades even during the authoritarian period, and proportionality has been one of the most important tools for the judiciary to either counteract or dialogue with the political branches. Second, notwithstanding that the Constitution in Taiwan arguably expressly stipulates the proportionality principle as a constitutional mandate to protect human rights, legal reception, particularly from both Germany and the United States, is evident in Taiwan’s constitutional jurisprudence. Nonetheless, along with the increasing reliance on proportionality, the Constitutional Court’s understanding and application of proportionality has changed in the past several years. This involves the third reason: Taiwan Constitutional Court has adapted proportionality to suit local needs and developed its own interpretation of proportionality.

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Published on December 14, 2018
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Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience

José Ignacio Hernández G., Universidad Católica Andrés Bello, Universidad Central (Venezuela); Center for International Development, Harvard University

Democracy is in crisis. With this sentence Michael J. Abramowitz introduced the 2018 Freedom House report.[1] In a similar vein, Mark A. Graber, Sanford Levinson and Mark Tushnet recently concluded that constitutional democracy appears in trouble throughout the world.[2] Indeed, evidence demonstrates a slight democratic decline:


Liberal democracy index 1900-2017

Source: Varieties of Democracy V-Dem

Within the context of threats against constitutional democracy, this post introduces the concept of “constitutional authoritarian populism” through the Venezuelan experience.

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Published on December 13, 2018
Author:          Filed under: Analysis

I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court–The Second Life of a Constitutional Court: Taiwan Constitutional Court and its Struggling with the Past

[Editor’s Note: This is Part II of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here and Part I is available here.]

–Cheng-Yi Huang, Associate Research Professor, Institutum Iurisprudentiae, Academia Sinica

Not every constitution has a chance to relive its life again. Not every constitutional court has a chance to rescue itself from plunging into the dust of history. The ROC Constitution is a rare example. It had been transplanted from one territory to another. It had ceased its major functions for almost forty years. It was enshrined as an immutable motto for national unification, which helped to legitimize the authoritarian rule of KMT (Kuomintang, or the Chinese Nationalist Party). Nowadays, the Constitution still represents two conflicting political identities: first, an anachronistic sovereignty without its claimed people (pre-1949 China) and second, a popular sovereignty with an anachronistic name (post-1991 Taiwan).[1] However, the Taiwan Constitutional Court (“TCC”) has envisioned a new regime of rights protection and self-government after the lifting of martial law in 1987. However, the specter of authoritarian legality is not fully dispelled. The TCC so far has not audaciously reflected on its own dark history in the martial law era. Though its case law is forward-looking, its dealing with the past is critical to its future. This essay first explains how the TCC had engaged in the architecture of the KMT authoritarian rule and then moves to its zigzagging course to carve out a compromised democratization after the lift of martial law. I argue that the authoritarian legacy prompted the TCC to carry out “silent reforms,” which accidentally enhanced a formalist conception of the rule of law and fostered a culture of constitutional agnosticism. Finally, I discuss the conflicting identities under the shadow of constitutional. The constitutional agnosticism goes hand in hand with the nominal political representation of the ROC Constitution, which will be the most challenging task for the TCC in the following decades.

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Published on December 13, 2018
Author:          Filed under: Developments

I-CONnect Symposium: The 70th Anniversary of the Taiwan Constitutional Court–Finding the Living Constitution in its Guardian’s Many Lives: Four Parallels

[Editor’s Note: This is Part I of our I-CONnect symposium on the 70th anniversary of the Taiwan Constitutional Court. We are grateful to our guest editor, Professor Chien-Chih Lin, for convening this group of contributors and bringing this symposium to our readers. The Introduction is available here.]

–Ming-Sung Kuo, Associate Professor of Law, University of Warwick; and Hui-Wen Chen, Research Assistant, University of Warwick

That the constitutional court breathes new life into an old constitution is a popular trope of the many stories about the living constitution in various jurisdictions, including Taiwan.  That is not what we have in mind.  In celebration of the long life of the Taiwan Constitutional Court (TCC), we aim to tell a different story about the living constitution in Taiwan.

Instead of another attempt to illuminate the TCC’s magnum corpus, our festschrift writing seeks to reveal four parallels between the TCC and the Republic of China (ROC) Constitution in their unusual life trajectory.  Mirroring the originally neutered and then reborn ROC Constitution, the TCC was shackled to a malformed body at birth in China, followed by the existential struggle to be quorate after finding itself a new home on the island of Taiwan, and later meekly lent a helping hand to bestow life presidency on the Leader, Generalissimo Chiang Kai-Shek.  To no one’s surprise, all this happened before the TCC emerges as the constitution’s guardian that it is.  Let us unfold the constitutional story written in the TCC’s many lives.

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Published on December 12, 2018
Author:          Filed under: Developments