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I·CONnect

Blog of the International Journal of Constitutional Law

Symposium | Introduction | The Polish Constitutional Tribunal Decision on the Primacy of EU Law: Alea Iacta Est. Now what?

[Editor’s Note: I-CONnect is pleased to feature a symposium on the recent decision by the Polish Constitutional Tribunal on the primacy of EU law. This introduction will be followed by four posts exploring different aspects of the decision and its impact.]

—Antonia Baraggia and Giada Ragone, University of Milan, Italy

On October 7, 2021 the captured Polish Constitutional Tribunal (CT) made an unprecedented move in the long-lasting arm-wrestling between Poland and the EU: it openly challenged the primacy of EU law and its interpretation by the Court of Justice of the European Union.

As is well-known, since 2015, the Polish government has been repeatedly warned by the EU that the reforms of the judiciary implemented in Poland jeopardize the principles descending from the rule of law, in particular the independence of the judiciary. Other grounds for clashes came with the management of the migratory crisis and Poland’s refusal to implement the EU emergency relocation plan, the introduction – following a decision by the CT – of a near total ban on abortion and the declarations by many local authorities of being free from “LGBT ideology”.  

Judgement K 3/21 is the culmination of this enduring battle over respect for the EU’s values and principles but also over state sovereignty, and it shows how far apart the EU and Polish authorities are. In the ruling, the majority of the CT stated that Article 1, first and second paragraphs, in conjunction with Article 4(3), Article 2 and Article 19(1), second subparagraph of the Treaty on European Union are inconsistent with the 1997 Constitution.

Among the other reasons, the Court affirmed that under the provisions mentioned: a) the European Union authorities act outside the scope of the competences conferred upon them by the Republic of Poland in the Treaties; b) the Constitution is not the supreme law of the Republic of Poland, which takes precedence as regards its binding force and application; c) the Republic of Poland may not function as a sovereign and democratic state. As Agnieszka Bień-Kacała notes in this Symposium, the ruling contrasts with the previous Polish constitutional case-law on EU law: indeed, back in 2010, the Constitutional Tribunal recognized the unique position of the Lisbon Treaty and its compliance with the Constitution.

To properly understand what this decision means for the EU, it must be read in context and it is a multifaceted context characterized by contrasting tensions: on one side the growing narrative advanced by Poland and Hungary, which challenge the EU authority in several areas and see EU interference as a constraint over the expression of national sovereignty and identity; on the other, what has been defined as a Hamiltonian moment for the EU,  marked by the establishment of the NextGenEU program, which provides economic support for Member States that have been severely hit by the Covid-19 pandemic and paves the way for a new step in the EU integration process.

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Published on October 15, 2021
Author:          Filed under: Analysis
 
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Truth-seeking in Peace Processes: Addressing Colonial Roots of Internal Conflict

—Armi Beatriz E. Bayot, University of Oxford Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In negotiating intrastate peace agreements,[1] an important threshold that needs to be crossed by the conflict parties is addressing the meta-conflict, i.e., the conflict about what the conflict is about. Bell argues that disagreements about the nature of the conflict lead to disagreements about how the conflict should be addressed. Arguing that the conflict is about the lack of democracy, for instance, leads to one set of solutions, while the position that the conflict is spurred by “inter-group ethnic hatred” leads to another set of solutions.[2] It is unlikely that a conflict could be easily classified as being rooted in only one of several possible causes. A single conflict often has multiple facets, and conflict parties will need to agree on what they deem to be major conflict facets that need to be addressed.[3]

The initial agreement of conflict parties on the contours of the conflict, however, cannot take the place of a methodical analysis of its structural causes. Peace negotiations are exclusionary by design, and formal processes of agreement-drafting often leave out important voices – leading to a limited framing of the conflict. Moreover, determining the root causes of conflict cannot be subject to negotiation, which by nature involves compromise. And in contexts where potential catalysts for internal conflict such as rampant poverty, landlessness, and racial discrimination can be traced to colonial-era rights violations, determining the nature and root causes of conflict requires an examination of how colonial era harms may have contributed to present-day violence, and this would require more than just negotiation.

In his report dated 19 July 2021, the United Nations Special Rapporteur (UNSR) on the promotion of truth, justice, reparation and guarantees of non-repetition[4] Fabian Salvioli argues that the mechanisms developed in the field of transitional justice can be valuable tools in responding to the legacy of rights violations in colonial contexts. While transitional justice projects have traditionally been limited to dealing with the consequences of conflict rather than root causes such as structural violence and economic, political, and social marginalisation, transitional justice mechanisms, such as truth commissions, reparations programmes, memorialisation, and guarantees of non-recurrence, can be designed specifically to investigate, address, and remedy colonial legacies.

Applying the lessons from the UNSR’s report specifically to the context of internal conflicts could radically transform contemporary peace processes. Employing transitional justice mechanisms in peace processes to inquire into the colonial roots of internal conflict will change the conversation around responsibility for harms in internal conflicts in at least two ways.

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Published on October 13, 2021
Author:          Filed under: Analysis
 
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The Decriminalization of Abortion: A Landmark Decision by the Mexican Supreme Court

—Joy Monserrat Ochoa Martínez, UNAM and the Mexican Supreme Court, and Roberto Niembro Ortega, Universidad Iberoamericana and the Mexican Supreme Court; co-Chair, ICON-S Mexico

Several weeks ago, the Supreme Court issued a landmark judgment recognizing a right to voluntary abortion during the first trimester of pregnancy. The ruling renders several articles of the criminal code of the state of Coahuila criminalizing abortion during the first 12 weeks of pregnancy unconstitutional, and thus revolutionizes abortion law in Mexico.

As of the date of the ruling, only four entities of the Mexican Republic authorize unfettered access to abortions of up to 12 weeks gestation: Mexico City, Oaxaca, Hidalgo, and most recently Veracruz. The local criminal codes of most states recognize narrow grounds for abortion such as when the pregnancy is considered life-threatening for the pregnant person or if the fetus is diagnosed with a severe congenital malformation. At the federal level, the only circumstance in which abortion is legally permitted is in cases of rape. However, several feminist organizations have pointed out that authorities routinely hinder or deliberately block access to free and safe abortions even in cases in which these are allowed by the law. Many women have been imprisoned because of this, according to reports, almost one person per day is prosecuted for abortion in Mexico.

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Published on October 12, 2021
Author:          Filed under: Developments
 
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What’s New in Public Law

—Matteo Mastracci, PhD Researcher, Koç University, Istanbul

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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. Belgium’s Constitutional Court has decided to upheld  decrees adopted by the Flanders and Wallonia regions that prohibit religious slaughter.
  2. The Albanian Constitutional Court has overturned the Electoral Code by abolishing the one percent threshold for independent candidates.
  3. The Constitutional Court of Angola has declared the illegal election of Adalberto da Costa Jr. as President of UNITA, at the party congress held in November 2019.
  4. The Constitutional Court of South Africa has ruled that the Gauteng government’s decision to dissolve the City of Tshwane council in 2020 was unlawful, even though there were “exceptional circumstances”.
  5. The Slovenian Constitutional Court has suspended a government decree under which public administration employees would have to either be vaccinated or have recovered from the virus to come to work from 1 October.
  6. Turkey’s Constitutional Court has rejected claims by 13 applicants accusing public officials of “violating victims’ right to life” in the 2015 Suruç massacre.

In the News

  1. A deputy from the European Solidarity Party announced the submission of the law on de-oligarchization to the Ukrainian Constitutional Court.
  2. In Germany, SPD, Greens and FDP will meet to discuss a possible coalition after the national election.
  3. Romania faced political deadlock following a vote of no confidence in Prime Minister Florin Citu and mounting public anger against the country’s political class.
  4. The Albanian judge, Ledi Bianku, who has served at the European Court of Human Rights (ECHR), has been appointed at the Constitutional Court of Bosnia and Herzegovina.
  5. Turkey has ratified of the 2015 Paris Agreement on climate change ahead of the UN climate conference.

New Scholarship

  1. Carlos A. Bali, Principles Matter (2021) (offering a thorough analysis of multiple constitutional issues during the Trump administration)
  2. John Lawrence Hill, The Prophet of Modern Constitutional Liberalism (2021) (providing and interdisciplinary approach on the study of liberal political thought and exploring Mill’s idea of freedom)
  3. Michal Krajewski, Relative Authority of Judicial and Extra-Judicial Review (2021) (examining the operation of EU judicial and extra-judicial review mechanisms)
  4. Omar Sanchez-Sibony, Democracy without Parties in Peru (forthcoming, 2022) (analysing the key political and electoral dynamics in the Latin American region)
  5. Roy L. Brooks, Diversity Judgments (2021) (arguing that the US Supreme Court’s deliberative process does not adequately reflect the gender, race, and sexuality make-up of the nation)
  6. Tímea Drinóczi, Agnieszka Bień-Kacała, Illiberal Constitutionalism in Poland and Hungary (2021) (exploring the recent illiberal constitutionalist trajectories and the democratic deterioration in both countries)
  7. Tomi Tuominen, The Euro Crisis and Constitutional Pluralism (2021) (arguing that constitutional pluralism is not a valid normative theory of European constitutionalism)

Calls for Papers and Announcements

  1. Populism in Action Project invites participants to join the online event ” Populism in Europe – The League Yesterday and Today” focused on new research into the evolution and growth of Italy’s League Party. Deadline for registration is October 20, 2021.
  2. The editorial team of “Children’s Rights Under Siege: Dignity in the Era of Global Interdependence” invites chapter proposals covering multidisciplinary topics on children’s rights. Deadline for abstract submission is December 15, 2021.
  3. The 2022 Public Law Conference to be held at University College Dublin welcomes paper submissions for the topic of “The Making (and Re-Making) of Public Law”. Deadline for abstract submissions is November 15, 2021.
  4. The British Institute of International and Comparative Law (BIICL) and Hasselt University invites paper submissions for the online conference “Climate Change Litigation in Europe: Comparative & Sectoral Perspectives and the Way Forward”. Abstracts and short bios must be submitted by October 31, 2021.
  5. The Faculty of Law at the University of Helsinki invites applications for the position of Professor, Associate Professor, Assistant Professor of International Law. Deadline for applications is November 7, 2021, 23:59 EET.
  6. The University of Gothenburg, Department of Political Science, invites applications for a post-doctoral researcher in Political Science for Varieties of Democracy (V-Dem) Institute. The application deadline is November 11, 2021
  7. The University of Melbourne welcomes submissions for the online conference “Legalisation of Same-sex Marriage: A Global Perspective” to be hosted on 7th and 8th December 2021. Deadline for submitting abstracts is October 15, 2021.
  8. University of Worcester and the University of Sheffield will host the online conference in “Questions of Accountability: Prerogatives, Power and Politics” taking place between 1-5 November 2021. Keynote speakers include Professor Alison Young and Professor Jonathan Slater. The event is free to attend and the deadline for both presenters and delegates to register is 24 October 2021.

Elsewhere Online

  1. Adam Zamecnik, Could Czechia’s newest anti-corruption party be this election’s dark horse?, Balkan Insight
  2. Claire Poppelwell-Scevak, Here we go again? Is fedotova and others just splitting hairs when it comes to same-sex couples?, Strasbourg Observers
  3. Hector Calleros, Mexico’s Constitution, Indigenous Rights and the Future, IACL-IADC Blog
  4. Marcin Kaim, The tension between the singular and multivarious conceptions of democracy, The Loop
  5. Marjorie Chorro de Trigueros, A Highly Risky Proposal to Reform the Salvadoran Constitution, ConstitutionNet
  6. Sasa Dragojlo, Pandora papers reveal second Serbian Minister’s hidden offshore, Balkan Insight
  7. Maame A.S. Mensa-Bonsu, Forging Forward Introspectively as Ghana’s Constitution Turns Thirty, IACL-AIDC Blog
  8. Rehim Baharu Elala, Time to consider decriminalising homosexuality in Ethiopia, AfricLaw
  9. David Super, Debt Limit End Game, Balkinization
  10. Max Steuer, Roots of the EU Tree: Value Streaming at the European Citizens’ Panel on Democracy, Verfassungsblog
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Published on October 11, 2021
Author:          Filed under: Developments
 

A Case for the Inclusion of the Right to Public Participation under Article 21 of the Indian Constitution: A Comparative Constitutional Analysis

Special Series: Perspectives from Undergraduate Law Students

Ishika Garg and Shamik Datta, National Academy of Legal Studies and Research, Hyderabad (India)

Introduction

Recently, in Rajeev Suri, the Supreme Court of India (‘SCI’) has recognised participatory democracy as a strong element of the Indian representative democracy, embedded in the Constitution itself. However, the government has failed to echo the judicial position towards public participation in its recent legislative processes. In this post, we argue for the inclusion of a right to public participation within the ambit of Article 21 of the Constitution, in cases which directly concern their right to life and livelihood. To support this, we shall draw strength from a comparative constitutional position on this subject-matter in other common-law jurisdictions, and rely on recent Indian legal developments. 

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Published on October 7, 2021
Author:          Filed under: New Voices
 
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What’s New in Public Law

—Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (Italy)

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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Tribunal of Poland will debate primacy of EU law on Thursday 7 October, after a hearing held on 30 September 2021.
  2. The U.S. Supreme Court agrees to hear a challenge to Boston’s rejection of the request to fly a flag bearing the image of a Christian cross over city hall in a case involving religious and free speech rights.
  3. The Constitutional Court of South Africa dismissed former president Jacob Zuma’s application for a rescission of his sentence to prison for violating the authority of the court and attacking the dignity of the judiciary.
  4. The Constitutional Court of South Africa dismissed an application by the Electoral Commission to postpone the municipal elections scheduled for 27 October 2021.
  5. Thailand’s Constitutional Court has postponed ruling on marriage equality. The Court was asked to rule on whether the section 1448 of Thailand’s Civil and Commercial Code breaches the constitution as it only recognises marriage between a woman and a man.

In the News

  1. A delegation of Members of the European Parliament has travelled to Hungary to assess the respect for press and academic freedom, the rights of minorities and the wider rule of law context.
  2. The European Parliament urges member states to create humanitarian corridors for Afghan refugees and calls for a special visa programme for Afghan women seeking protection.
  3. Germany’s general elections held on 26 September 2021 have determined a fragmented political order with a prevalence of the Social Democrats (SPD) upon the Christian Democrats (CDU-CSU).
  4. The former Catalan president Charles Puigdemont was released after being arrested in Sardinia, but he must return in October for a hearing.
  5. Tunisia’sermany’sPresident Kais Saied appointed the Professor Najla Bouden Romdhane as first woman prime minister.

New Scholarship

  1. Diletta Tega, The Italian Constitutional Court in its Context: A Narrative, European Constitutional Law Review (2021) (examining the dichotomy of dialogue/conflict between the Italian Constitutional Court and the Court of Justice of the European Union)
  2. Thulasi K. Raj, Private discrimination, public service and the constitution, Indian Law Review (2021) (examining the protection against private discrimination under the Indian Constitution)
  3. Margrit Seckelmann, Lorenza Violini, Cristina Fraenkel-Haeberle, Giada Ragone (eds.), Academic Freedom Under Pressure? (2021) (describing the status quo of academic freedom in Europe)
  4. James A. Gardner (ed.), Comparative Election Law (forthcoming 2022) (offering a systematic and comprehensive examination of the election laws of democratic nations)
  5. Florian Meinel, Germany’s Dual Constitution (2021) (offering a persuasive framework for understanding the German constitutional system)
  6. Emilio Peluso Neder Meyer, Constitutional Erosion in Brasil (2021) (examining the successes and the failures of the 1988 Constitution of Brazil)

Calls for Papers and Announcements

  1. The International Association of Constitutional Law (IACL) is pleased to announce a round table on  “The Impact of Digitalization on Constitutional Law,” to be held on 31 January – 1 February 2022 in Copenhagen. The deadline to submit abstracts is 1st November 2021.
  2. The Keele Law Review is pleased to announce a call for submissions for its fifth volume (2022) on the theme of “The Israeli Constitutional Revolution: 40 Years On.” The deadline for proposals is 11 October 2021.
  3. The Institutum Iurisprudentiae, Academia Sinica (IIAS) will host the 9th Asian Constitutional Law Forum in Taipei on 13-14 May 2022. The deadline to submit abstracts is 1 November 2021.
  4. The Foundation House of Human Sciences (FMSH) and its partners offer mobility aids for postdoctoral research in Paris in the humanities and social sciences lasting from one to three months. The 1st 2022 campaign is open from 15 September to 10 December 2021.
  5. On 5 October 2021, the European University Institute (EUI) hosts an online summit on “Fighting Misinformation Online.”

Elsewhere Online

  1. David R. Cameron, The SPD and Greens make big gains in German election, CDU & CSU get worst result ever, Yale MacMillan Center
  2. Mark A. Kayser, Arndt Leininger, Anastasiia Vlasenko, The 2021 German federal election: How surprising was it really?, LSE blog
  3. Cassandra Emmons, Limiting Human Rights during Pandemics, Verfassungsblog
  4. Ulisses Levy Silvério dos Reis, Raíssa Paula Martins, Legalizing Disinformation, Verfassungsblog
  5. Thulasi K. Raj, Kaleeswaram Raj, Takling hate speech, The Hindu
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Published on October 4, 2021
Author:          Filed under: Developments
 

Shortcuts and Short Circuits in Latin American Constitutional Models: a Reading of Cristina Lafont’s Democracy without Shortcuts

—Julian Gaviria-Mira, Universidad EAFIT, Colombia

In Democracy without Shortcuts, the philosopher Cristina Lafont has elaborated a compelling defense of what she calls a “deliberative-participatory democracy”. This democracy “without shortcuts” seeks to vindicate, at the same time, both deliberation in democratic institutions and strong participation of the citizens in collective self-government. Curiously, the effort to delineate this form of government -at once deliberative and participatory- ends with a defense of judicial review. I say “curiously” because it is not by no means natural that a conception of democracy that includes the adjective “participatory” decides to close its argument with a justification of the power of judges to invalidate the decisions of popularly elected majorities.

The question is a justified one and the author offers us an answer in the same text I am commenting on. It is basically related to the character that Lafont gives to the constitutional review. Following Rawlsian lines, Lafont links judicial review with the exercise of public reason. Judges, in exercising the powers assigned to them, would not only defend the superiority of the constitution and fundamental rights, but would also be exercising public reason and only public reason. That is to say, their decisions would be based only on shared principles, and the justification offered by the courts would be supported only by arguments and reasons that can be commonly shared.

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Published on September 30, 2021
Author:          Filed under: Analysis
 
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Vietnam: Emergency Powers in Time of Pandemic and the Role of the Written Constitution

—Le Nguyen Duy Hau, Attorney at Law

This blog post seeks to inform about a new constitutional development in Vietnam surrounding an enabling act formally vesting the Prime Minister (“PM”) with unprecedented emergency powers, and how such an event could provide meaningful suggestions in further research into Vietnam’s constitutional law. In short, I argue that when researching the constitutional law of Vietnam, a country with only one ruling party, examining the written constitution may be insufficient as other traditions and behaviors accepted by main political actors may suggest better answers to certain phenomenon.

From being hailed as a global superstar for its impressively economical containment of the COVID-19, Vietnam quickly saw its success shattered by the Delta variants. By August 2021, with the new daily cases averaging more than 10,000 and the increasing hospitalization rates overran a weak healthcare system, the country’s main financial hub Ho Chi Minh City and the capital Hanoi effectively went under lockdown with the government decided to deploy of regular troops to the historically complicated South to enforce an almost martial law order. The situation was so severe that a freshly elected National Assembly – the country’s main legislative body and constitutional supreme organ – had to take an unprecedented move by granting the PM with an 18-month-long enabling power, a legal proposal not explicitly stipulated anywhere in the written constitution.

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Published on September 28, 2021
Author:          Filed under: Analysis
 
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What’s New in Public Law

—Nakul Nayak, Assistant Professor at Jindal Global Law School, India.

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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Uganda found a controversial anti-pornography law, which included a ban on “indecent” clothing, unconstitutional.
  2. The Constitutional Tribunal of Poland adjourned its sitting on whether Poland’s Constitution or European Union Treaties take precedence.
  3. The Constitutional Court of South Africa held that the Western Cape Department of Social Development does not have a legal duty to ensure the day-to-day safety of children in places of care. The Court dismissed an appeal by a father who sued for damages suffered by his daughter who was seriously injured while playing at an early childhood development centre.
  4. The Constitutional Court of Costa Rica upheld the constitutionality of mandatory vaccination in the country.
  5. Turkey’s Constitutional Court reversed a lower court decision rejecting a trans woman’s application to change her name because she had not undergone gender reassignment surgery.

In the News

  1. Libya’s Tobruk-based parliament passed law Number 1, 2021, which provides for the direct election of the president of the country and their duties and responsibilities.
  2. Ukraine’s parliament passed a bill that establishes civil liability for acts of “anti-Semitism”.
  3. Malaysian Members of Parliament from both sides of the political divide have been urged to back an amendment to the Federal Constitution. As it stands, the Constitution allows citizenship to be granted to children born overseas to Malaysian fathers only.
  4. El Salvador’s vice president has delivered to President Nayib Bukele the final proposal for constitutional changes, which extends presidential terms and establishes a new electoral tribunal body. Bukele will review the proposals before sending them to Congress, where Bukele’s party has a large majority.
  5. The Taliban announced plans to form a commission next year to draft a new constitution.

New Scholarship

  1. Dragoljub Popovic, Constitutional History of Serbia (displaying the complex constitutional history of Serbia as a case study, following the evolution of concepts such as human rights and the rule of law).
  2. Son Ngoc Bui, Russia’s Big Bang Constitutional Amendments, NYU Journal of International Law and Politics (2021) (arguing that Russia’s 2020 constitutional amendments can be understood as “big-bang constitutional amendments”— amendments that rapidly introduce large-scale change to the existing constitution all at once).
  3. Kevin L. Cope et al, The Global Evolution of Foreign Relations Law (making empirical claims after mapping 108 countries’ foreign relations law choices and motivations over a nearly 200-year period).
  4. Christina Murray, Making and Remaking Kenya’s Constitution (outlining the different processes followed by Kenya to secure constitutional change and exploring their successes and failures).
  5. William Partlett & Dinesha Samararatne, Redeeming the National in Constitutional Argument, World Constitutional Law (forthcoming, arguing that linking national history and the text of the national constitution to constitutionalism can help counter the nationalist backlash against appeals to a supra-national constitutional discourse).
  6. Nakul Nayak, Constitutional Morality: An Indian Framework, American Journal of Comparative Law (forthcoming, exploring “constitutional morality” as an idea in intellectual history, as a doctrine developed by Indian courts, and as a phenomenon in the contemporary Indian constitutional and political system).

Calls for Papers and Announcements

  1. The Academy on Human Rights and Humanitarian Law at American University Washington College of Law accept submissions for its upcoming 2022 Human Rights Essay Award Competition on “Climate Change and Human Rights: Impacts, Responsibilities, and Opportunities.” The deadline for submissions is January 31, 2022.
  2. Eurac Research will host a webinar on the theme “Democratic system and territorial integration: the effects and consequences of Catalonia’s quest for independence” on October 7, 2021. The webinar will take place in English and Spanish.
  3. The University of Ljubljana Faculty of Law hosts a conference on the theme “(Playing) Constitutional Twister: The Mechanisms of Convergence and Divergence within Multilevel Legal Orders” on October 1 and 2, 2021. The conference will take place in person as well as online via Zoom. Registration is required.
  4. National Law School of India University’s Socio-Legal Review invites submissions for its next issue. Deadline for submission of abstracts if October 15, 2021.
  5. The Nordic CONREASON Project will host a webinar series to discuss the institutional context of constitutional reasoning in the Nordic countries beginning November 24, 2021.
  6. The Verfassungsblog hosts an online symposium entitled “International Pandemic Lawmaking: Conceptual and Practical Issues”. Posts can be found here.
  7. The Stellenbosch University Law Clinic (SULC), supported by the International Association of Legal Ethics (IAOLE), will host a two-day virtual conference on November 29 and 30, 2021 on the theme “COVID-19: Ethics under pressure.” SULC welcomes proposals for presentations. The deadline is September 30, 2021.
  8. The Bonavero Institute of Human Rights and SAIFAC will host a book launch on Berihun Adugna Gebeye’s A Theory of African Constitutionalism (OUP, 2021). The launch will take place online on November 3, 2021
  9. Hon. Margaret McMurdo AC has launched the Feminist Judgments and Critical Judgments Projects website. 

Elsewhere Online

  1. Balkinization organizes an online symposium on the book by Rosalind Dixon and David Landau on “Abusive Constitutional Borrowing: Legal globalization and the subversion of liberal democracy.”
  2. Dragoș Călin, The priority of the EU law in Romania: between reality and Fata Morgana, Official Blog of UNIO-EU Law Journal.
  3. Raghav Ahooja & Torsha Sarkar, How (Not) to Regulate the Internet: Lessons from the Indian Subcontinent, LAWFARE.
  4. Judge Patrick J. Bumatay, The Value of Dissent, US Constitution Day 2021 Lecture at Stanford Constitutional Law Center.
  5. Nurina Ally and Tess Peacock, Constitutional Court provides certainty: Provinces are not liable for injuries at Early Childhood Development centres, Maverick Citizen.
  6. Primah Kwagala, Annulment of the Anti-pornography law, The Independent.
  7. Paul Burgess, Why We Need to Abandon ‘The Rule of Law,’ IACL-AIDC Blog.
  8. Tariro Sekeramayi, The South African local government elections and the COVID-19 pandemic, AfricLaw.
  9. Gautam Bhatia, Affirmative Action as a Remedy for Dispossession: The Judgment of the Ugandan Constitutional Court, Indian Constitutional Law and Philosophy.
  10. Costa Avgoustinos, The ‘Ecological Limitation’: Exploring the Implications of Climate Change for the Australian Constitution, AUSPUBLAW.
  11. Renato Saeger Magalhães Costa, Substantive Values in Administrative Law – A Principle of ‘Jurisdicity’ to Complement the Principle of Legality, Admin Law Blog.
  12. Simon Drugda, The People v Their Representatives: The Slovak Constitutional Court Blocks Referendum on Early Election, Verfassungsblog
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Published on September 27, 2021
Author:          Filed under: Uncategorized
 

Is Polarization Necessarily Bad? Lessons from Latin America

—Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Polarization is what several political scientists and constitutional scholars have pointed out as possibly the most troubling sign of democratic backsliding. Zachary Elkins, for example, says that “[he] might view divided publics as the single most important factor that threatens and undermine democracy at least in modern presidential systems.”[1] Among the various factors leading to democratic crises, Elkins suggests that “the comparative study of polarization may be the key to understanding the health of democracy more generally.”[2] In environments of high social inequality, polarization tends to be more explosive still, as it helps exacerbate the divide among distinct social groups and affect the capacity of institutions to work as coordination devices, which then fail to deliver incentives for empowering individuals to defend their rights.[3] Moreover, it provides a sense of belonging, while, as King and Smith put it, “[fostering] a very real sense that government is in the hands of elites who care only for themselves, not ‘the people.’”[4] The strategies of would-be autocrats of the current times directly target polarization as a fundamental mechanism of coordination. Polarization turns into a psychological weapon for mutual engagement. But is polarization necessarily bad? The devil might be in the details and in how the political system organizes itself under an environment of polarization.

A phenomenon that is well discussed in the literature is how party systems have been weakened in the face of radicalization through polarization. The movements towards consensus and compromises that are expected of political systems are highly disrupted when those parties are pushed to extremes, if not beaten by new parties that assume such a strategy as their platform. This is what Kim Lane Scheppele, in her the provoking and fascinating paper The Party’s Over, diagnoses in the United States and United Kingdom[5] as well as in multiparty systems in Europe: “in the multiparty systems of France, Austria, Germany, the Netherlands, and Italy, which have all gone through elections in 2017 and 2018, the weakness of the party system can be seen in the decline of traditional parties and the rise of extremist parties of both Left and Right.”[6] Other cases where the “party system was in shambles,”[7] like in Venezuela and Hungary, illustrate how polarization may turn out really bad for democracy.[8]

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Published on September 22, 2021
Author:          Filed under: Analysis
 
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