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I·CONnect

Blog of the International Journal of Constitutional Law

Disinformation, Digital Platforms and COVID-19: Making State Agents Accountable in Brazil

—Fabrício Bertini Pasquot Polido and Emilio Peluso Neder Meyer, Federal University of Minas Gerais (UFMG)

Brazil faces the most critical moment of the COVID-19 pandemic since its beginning in 2020. Death tolls soared to new highs – with more than 300,000 deaths by the end of March 2021 – and the National Public Health System (SUS, Sistema Único de Saúde) is at the brink of a collapse. Vaccine production and distribution were systematically sabotaged throughout 2020 by President Bolsonaro’s Ministry of Health. He appointed his fourth health minister in the pandemic period after a succession of disastrous events and complete mismanagement of the health system at federal level. The president is the world’s best example of a political leader who discourages social distancing, participates in political demonstrations against democratic institutions and stimulates the usage of medicines without a scientific basis, such as chloroquine and ivermectin. Scholars are now contending that President Bolsonaro and governmental officers have an intention of deliberate virus propagation aiming at herd immunity. With all the negative political and social consequences of that scenario, the production of fake news on COVID-19 and vaccination exploded in Brazil.

Fake News and COVID-19

Brazil is the second country in the globe in numbers of users in the digital community engaged with social media, according to a recent report of the Global WebIndex. It also has the fourth largest national population in the world with internet access (considering fixed broadband and mobile services), according to the most recent figures published by the International Telecommunications Union in 2020.

The fabrication and dissemination of fake news has also aggravated the numbers of infections and deaths. False information on Covid19 and vaccination have contributed to decrease the knowledge on the lethality of the disease and the vaccine’s efficacy, creating hurdles to restraining the pandemic. In May 2020, an Avaaz research showed that seven out of ten Brazilian internet users – around 100 million people – believe in at least one fake news story on coronavirus. According to the same study, between five and six out of ten internet users engaged with fake news associated with COVID-19  and discredited the severity of the disease.

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Published on March 26, 2021
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Implementing Constitutional Gender Quotas: A Kenyan Perspective

— Mumbi Gathoni, Advocate of the High Court of Kenya

On 21st September 2020, the Chief Justice of Kenya (now retired) advised the President of the Republic of Kenya to dissolve Parliament for its failure to adhere to the Constitutional requirement that not more than two-thirds of members of legislative bodies shall be of the same gender (‘the two-thirds gender rule’).[1] However, that advice has not been acted upon by the President. This is not the first time the constitutional provisions in question have been the subject of court proceedings. In 2012, The Supreme Court issued an advisory opinion on the matter. By a majority of four with the then Chief Justice dissenting, the Court held that the Constitution envisioned a progressive realization of the two-thirds gender rule and directed Parliament to enact the requisite legislation by 27th August 2015.[2] Parliament failed to enact the legislation, even after it had extended the compliance period by one year. A petition was subsequently filed in the High Court.[3] The High Court issued an order of mandamus requiring the Attorney General and the Commission on Implementation of Constitution to prepare the requisite Bills for tabling in Parliament within 40 days from 26th June 2015.[4] However, although the Bills were presented to it, Parliament still did not enact the requisite legislation prompting the filing of another petition in the High Court.[5] The High Court issued another order of mandamus requiring Parliament to enact the requisite legislation within 60 days from the date of the order.[6] However, despite its appeal on the matter being dismissed, Parliament still didn’t enact the legislation prompting the 2019 and 2020 petitions before the Chief Justice that led him to advise the President to dissolve Parliament.[7]

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Published on March 25, 2021
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Beyond Term Limits: Restraining Chief Executives in Africa

—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

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

On 8 March 2021, the Mo Ibrahim Foundation announced that President Mahamadou Issoufou of Niger won the 2020 Ibrahim Prize for Achievement in African Leadership. The Mo Ibrahim Prize aims to help African countries to solve, or at least ease, what Rosalind Dixon and David Landau called “the end game problem” presidents face at the end of their tenure: that is whether to comply with term limits, ‘which in the short run may lead to the loss of power and privileges associated with high electoral office and in the long run, may bring in only limited and uncertain reputational benefits.’[1] By recognizing former executives as “exceptional role models for the continent” and awarding them some $5 million USD, the Mo Ibrahim Prize tries to ensure that these executives continue in other public roles on the continent. Although we do not know how this influences the decisions of African executives, the reputational and financial benefits that come with the Mo Ibrahim Prize can ease “the end game problem”.

Since its establishment in 2007, only five leaders have won this prize: Joaquim Chissano of Mozambique (2007), Festus Mogae of Botswana (2008), Pedro Pires of Cabo Verde (2011), Hifikepunye Pohamba of Namibia (2014), and Ellen Johnson Sirleaf of Liberia (2017), while Nelson Mandela was also the inaugural Honorary Laureate in 2007. These leaders and their countries have different democratic records: for instance, according to the 2020 Economist Intelligence Unit’s Democracy Index, Cabo Verde, Botswana, South Africa, and Namibia are “flawed democracies”, Liberia is a “hybrid regime”, while Mozambique and Issoufou’s Niger are “authoritarian regimes”.

However, all these leaders have at least one thing in common: they respected their constitutional term limits. Issoufou was first elected President in 2011 and stepped down at the end of his second term, “demonstrating his clear respect for the constitution”, according to the press release of the Mo Ibrahim Foundation. The prize committee further states that “[t]hroughout his time in office, he has fostered economic growth, shown unwavering commitment to regional stability and to the constitution, and championed African democracy.” Yet, according to the 2020 Ibrahim Index of African Governance that covers ten years of data from 2010-2019, a time period that roughly covers Issoufou’s presidency, Niger is ranked 28th in its overall governance out of 54 countries, much lower than Paul Kagame’s Rwanda (ranked 11th) and Yoweri Museveni’s Uganda (ranked 22nd). Nonetheless, unlike Issoufou, Museveni and Kagame were not willing to step down at the end of their terms. Museveni, a 76-year-old former rebel leader in office since 1986, removed both constitutional term limits and age limits to stay in office. Similarly, Kagame a 63-year-old former rebel leader in office since 2000, extended the constitution’s two-term limit, which would allow him to stay in office possibly until 2034.

Issoufou’s decision to step down after his second term marked the first peaceful transfer of power in Niger’s history since its independence in 1960. By virtue of this fact alone, Issoufou may deserve the 2020 Ibrahim Prize for Achievement in African Leadership.

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Published on March 24, 2021
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UN Keynote Lecture on “Amazon: Human Security, Crime Prevention and Sustainable Development” by Minister Luís Roberto Barroso

The 14th UN Congress on Crime Prevention and Criminal Justice was held earlier this month in Kyoto on March 7-12. The Congress featured a keynote lecture by Minister Luís Roberto Barroso of the Brazilian Federal Supreme Court. We are pleased to share a video of Minister Barroso’s keynote lecture titled “Amazon: Human Security, Environmental Crimes and Sustainable Development.”

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Published on March 23, 2021
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What’s New in Public Law

–Boldizsár Szentgáli-Tóth, Research Fellow at the Centre for Social Sciences, Institute for Legal Studies – Centre of Excellence (Budapest), and a Research Fellow at Eotvos Loránd University (Budapest)

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 Constitution Bench of the Supreme Court of India held a two-day-long hearing on the challenge to the Socially & Educationally Backward Classes (SEBC) Act 2018, which provided for a quota to Marathas in jobs and education.
  2. The Constitutional Court of Portugal struck down a law passed by the Parliament that allows euthanasia and physician-assisted suicide for terminally ill and gravely injured people due to its imprecise wording.
  3. The Constitutional Court of Kuwait ordered the country’s most outspoken opposition lawmaker expelled from parliament.
  4. The Constitutional Court of Albania has demanded the government to set a timeline for the duration of restrictions of movement and gatherings.
  5. The Constitutional Court of Niger confirmed the winner of the last month’s presidential runoff election, which marks the first transfer of power from one democratically elected leader to another in Niger.

In the News

  1. The Parliament of Thailand failed to pass a bill that would have allowed changes to a military-backed Constitution enacted after the 2014 coup.
  2. The Colorado Supreme Court ruled that state Senate Democrats violated the Constitution in 2019 when they responded to Republicans’ request that bills be read at length by having computers speed-read the bills.
  3. The district court of Sapporo found the Japanese same-sex marriage ban unconstitutional.
  4. The Constitution of Pennsylvania has been amended with a rarely used emergency process advancing a proposal to allow victims of child sexual abuse a 2-year window for filing otherwise outdated civil lawsuits.
  5. The Tennessee Senate approved an amendment to remove a section of the state Constitution that allows slavery as a punishment for a crime.
  6. The Missouri House of Representative passed a constitutional amendment to increase the threshold for adopting constitutional amendments from 51% of the vote to a two-thirds majority and increase the number of signatories required for putting initiatives on the ballot.
  7. The North Carolina House of Representatives approved a resolution to formally endorse a US constitutional convention that considers sending a congressional term-limit amendment to the states.
  8. An organizer of protest against a proposed set of constitutional amendments in Kyrgyzstan has been detained for allegedly calling on people to seize power before the changes become law.
  9. The Canadian province of Alberta has introduced legislation to give citizens a chance to directly petition the province to amend policies, laws, and the Constitution.
  10. The French National Assembly approved a plan to change the country’s Constitution to reinforce environmental protection.
  11. The Ombudsman of Armenia stated that a government-drafted bill that would cut his office’s funding is discriminatory.

New Scholarship

  1. Jonathan Gould, David Pozen, Structural Biases in Structural Constitutional Law, New York University Law Review (2021) (developing the idea of structural biases in structural constitutional law that sometimes tilt the playing field for or against certain political factions)
  2. Gilmar Mendes, Victor Oliveira Fernandes, Digital Constitutionalism and Constitutional Jurisdiction: A Research Agenda for the Brazilian Case (2021) (discussing how normative principles of digital constitutionalism can guide the judicial review of internet laws in Brazil)
  3. Nikos Skoutaris, Problematising the Role of the EU in Territorial Sovereignty Conflicts (2021) (problematizing the role of the European Union in territorial sovereignty conflicts)
  4. Ernst Hirsch Ballin, Gerhard van der Schyff, Maarten Stremler, and Maartje De Visser (eds), The City in Constitutional Law – European Yearbook of Constitutional Law 2020 (2021) (examining the positioning and powers of cities in the contemporary constitutional context)
  5. Eve Hepburn, Michael Keating, Nicola McEwen (eds): Scotland’s New Choice: Independence after Brexit (2021) (providing a guide to anyone seeking to navigate the issues involved in holding a second referendum on independence in Scotland)

Calls for Papers and Announcements

  1. RECONNECT (Reconciling Europe with its Citizens through Democracy and the Rule of Law), a Horizon2020 research project, has recently launched the second run of the Massive Open Online Course (MOOC) on “Rule of Law and Democracy in Europe.”
  2. The Centre on Constitutional Change organizes an online workshop on “Comparative Perspectives on Secession Series: The politics of constitutional reform and secession in Canada and Spain,” to be held on March 25, 2021.
  3. The Centre for Constitutional Studies organizes a webinar on “Online Charter Series: The Constitutional Right of Religious Freedom in Canada,” to be held on March 22, 2021.
  4. The University of Exeter and the University of Geneva invite submissions for their conference on The Potential of Public Interest Litigation in International Law, to be held on November 11-12, 2021. The deadline for submission of abstracts is April 30, 2021.
  5. The European University Institute in Florence invites submissions to a conference on “The Dust of Time? Towards a 21st Century Constitutionalism,” to be held on October 7-8, 2021. The abstracts may be submitted by March 31, 2021.
  6. The Journal Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società (NAD) invites submissions for a special issue on “Democracy and rule of law in crisis: National and EU context compared.” The deadline for submission of essays is April 15, 2021. The deadline for all other submissions is May 15, 2021.
  7. Call for Papers: New Authoritarian Regimes and Democracies: Law, Institutions, Society.
  8. The European Yearbook of Constitutional Law invites proposals for its 2022 issue on “The Constitutional Identity of the European Union.” The proposals may be submitted by June 1, 2021.
  9. The Sapientia Hungarian University of Transylvania, Department of Law, invites submissions for its conference on “New Technologies in Courts: Advantages and Limits.” The deadline for submission of abstracts is April 19, 2021.
  10. The Indian Constitutional Law Review (ICLRQ) invites submissions for its forthcoming issue. The deadline for submission is April 25, 2021.
  11. The Irish Legal History Society and Queen’s University Belfast invite submissions for the 25th British Legal History Conference 2022, to be held on July 6-9, 2021. The deadline for submission of abstracts is August 30, 2021.

Elsewhere Online

  1. Mikołaj Barczentewicz, An empirical study of the gender of counsel before the UK’s highest court, UK Constitutional Law Association
  2. Jacobo Dopico Gómez-Aller, The “Pablo Hasél Case:” Slander and Defamation of the Spanish Crown in the 21st Century, Verfassungsblog
  3. Başak Çalı and Emre Turkut, Year One: Reflections on Turkey’s Legal Responses to the COVID-19 Pandemic, Verfassungsblog
  4. Yiannos Georgiades, Coronavirus restrictions: Revisiting the constitution, Cyprus Mail
  5. Stephen Gethins, A Debate on Scotland’s Place in the World is Long Overdue, Centre on Constitutional Change
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Published on March 22, 2021
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Going Against the Tide: The Romanian Constitutional Court Rejects a Ban on Gender Studies

—Georgiana Epure, President of the Association for Liberty and Gender Equality, Romania and Elena Brodeală, postdoctoral researcher at the University of Zurich and Odobleja Fellow at the New Europe College in Bucharest

Despite a regional backsliding on gender issues in Eastern Europe, the Constitutional Court of Romania (“CCR” or “the Court”) has recently decided that a legislative proposal banning gender studies was unconstitutional, holding that “sex” and “gender” are distinct concepts. At a time when women’s rights and LGBT+ rights are under attack in many parts of the world, the Court affirmed the centrality of equality, non-discrimination and fundamental rights, as well as the primacy of international human rights standards in the debates around gender issues. 

The legislative proposal, which aimed to amend the National Law on Education and was adopted by the Parliament last summer, sought to ban “activities aimed at spreading gender identity theory or opinion” in all spaces assigned for education and professional training, including those providing extracurricular education. The “gender identity theory or opinion” was defined as “the theory or opinion according to which gender is a concept that is different from the biological sex and that the two are not always the same”. After a failed national referendum in 2018 aiming to explicitly define marriage as the union between a man and a woman in the constitutional text and, thus, enshrine gender stereotypes in the Romanian Constitution, this legislative proposal was part of conservative groups’ latest efforts to counter “gender ideology” – an umbrella term used to justify attacks on women’s rights and the protection of sexual and gender minorities. 

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Published on March 21, 2021
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Special Undergraduate Series–Six Issues for Debate in Chile’s Upcoming Elections for the Constitutional Convention

Special Series: Perspectives from Law Students
J.D. Student Contribution

–William Skewes-Cox, 3L, Georgetown University Law Center

On April 10th and 11th, 2021, Chile will hold elections to select the 155 members of the Constitutional Convention that will write the country’s new constitution. Chileans will vote across twenty-eight electoral districts, each with between three and eight seats depending on population, for a total of 138 seats. Winners will be determined by proportional representation based on total votes by party list. The remaining seventeen seats are reserved exclusively for winners of elections among indigenous peoples.

There are three main lists competing for seats that mirror current coalitions in the Congress. The right-wing unified to form the “Vamos por Chile” coalition. The left-wing opposition in Congress, which holds a combined majority in both houses, divided into two coalitions: the center-left parties formed “Lista del Apruebo” while the hard left came together in “Apruebo Dignidad.” Each electoral list is required by law to present alternating male and female candidates. The Chilean constitution will be the first ever written by an equal number of men and women.

Because no current office holder may run as a candidate for the Constitutional Convention, new national leaders are likely to emerge following the election. The first leadership contest will be over the selection of the President and Vice President of the Constitutional Convention by the newly elected members. While in all likelihood the center-left and hard left coalitions will win a combined majority of the seats, the right-wing coalition will win more than one-third of the seats. Given that the rules of the Convention require two-thirds approval for any article to enter the constitution, writing the new constitution will require broad compromise. There are several issues up for debate in the coming April elections that will also carry on once the Constitutional Convention begins to meet.

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Published on March 18, 2021
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Lula is Free: The Brazilian Supreme Court’s Habeas Decision and the 2022 Election

—Felipe Oliveira de Sousa, Center for Law, Behaviour and Cognition (CLBC), Ruhr-Universität Bochum

On March 8, 2021, Judge Edson Fachin from the Brazilian Supreme Court (STF) made a decision that might decisively affect the course of the next presidential elections in Brazil, in 2022. Judge Fachin ordered the annulment of all decisions taken on four criminal procedures concluded against former President Luiz Inacio Lula da Silva. As a consequence, all the decisions connected to those procedures are now rendered void. This decision is causing intense debate in Brazilian media and social networks, and for a good reason. Former President Lula was convicted on four occasions, all of which were confirmed by a second instance. Judge Fachin’s decision determined that all these convictions are void, and that the cases must be re-initiated and judged anew. On top of its immediate legal consequences, this decision is likely to have important political implications, as it also frees former President Lula from ineligibility to run for public office.

Lula was accused of leading a massive corruption scheme within public institutions in Brazil, with questionable political and financial aims (see, e.g. penal action n. 5046512-94.2016.4.04.7000/PR). The four convictions were a result of the Car-Wash Operation (Operacao Lava-Jato), a concerted operation involving members of the Federal Police, public prosecutors, and other members of the Brazilian justice system originally based in the city of Curitiba that unveiled a massive corruption scheme in important public companies in Brazil – such as Petrobras –, involving dozens of Brazilian politicians and businessmen. A central figure in the operation was Federal Judge Sergio Moro, who occupied the 13th Vara Federal of Curitiba at the time (a section of the Federal Justice located at the state of Parana, Brazil). It was Judge Moro who judged and convicted former President Lula in the first instance in all four criminal cases that have now been annulled by Judge Fachin’s decision.

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Published on March 17, 2021
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What’s New in Public Law

—Vini Singh, Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur, 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 Thai Constitutional Court ruled in favor of the proposed amendment to establish a constitutional drafting assembly for the overhaul of the 2017 Constitution.
  2. The Constitutional Court of Turkey concluded that the right to life of Festus Okey, who was killed by police in detention, was violated on material and procedural grounds.
  3. The Constitutional Court of Italy ruled that Parliament needs to pass a law regarding same-sex couples’ parental rights.
  4. The South Korean Supreme Court upheld the acquittal of the owner of Brothers Home in the case involving enslavement and abuse of vagrants, children and disabled people.
  5. The Supreme Court of India held that expressing views different from that of the government does not amount to sedition.
  6. The Supreme Court of India seeks a reply from the government on Uniform Succession laws.
  7. The U.S. Supreme Court disposed of all remaining cases brought by former President Donald Trump challenging his election loss.
  8. The Gujarat High Court issued guidelines to end discriminatory practices pertaining to menstruation.
  9. The European Court of Justice ruled that Poland’s appointment process for Supreme Court judges violates EU law.
  10. The Federal Constitutional Court of Germany published for the first time an annual report.
  11. The Federal Constitutional Court of Germany dismissed an application in a case challenging motion adopted in Parliament relating to the EU-Canada free trade agreement (CETA).
  12. The Federal Constitutional Court of Germany dismissed an electoral complaint concerning the lack of statutory provisions requiring gender balance when nominating candidates for the parliamentary elections.

In the News

  1. Kyrgyz Parliament approves law for a referendum on constitutional change.
  2. Several protestors reported killed in Myanmar.
  3. Nepal’s Parliament holds the first meeting after reinstatement by the apex court.
  4. China approves a plan to control Hong Kong elections.
  5. EU to take legal action against the UK government for failing to keep promises made in Brexit deal to keep Ireland free of border checkpoints.
  6. Pakistan’s former premier accuses Imran Khan of receiving PKR 700 million for Senate seat.
  7. Turkey, Russia and Qatar to push for a political resolution in war-torn Syria.

New Scholarship

  1. Yuvraj Joshi, Racial Justice and Peace, 110 Georgetown Law Journal (forthcoming 2022) (examining United States equality law through the prism of “no justice, no peace” and the transnational “peace versus justice dilemma”)
  2. M. D. Bari, Let Judges Speak for themselves: Can Comparative Constitutional Case Law Help Conceptualize Universal Standards in the Fight Against COVID – 19, Dirittofondamentali.it 2020, 1. (comparatively examining recent constitutional case law concerning judicial review of emergency measures adopted in the fight against COVID -19)
  3. Andrew Blick, Electrified Democracy (2021) (discussing the impact of technology on parliamentary workings in its longer-term historical context)
  4. Martin H. Redish, Commercial Speech as Free Expression (2021) (arguing that commercial speech deserves the same treatment under First Amendment as traditionally protected speech like political speech)
  5. Kent Roach, Remedies for Human Rights Violations: A Two Track Approach to Supranational and National Law (2021) (demonstrating how the proportionality principle can improve remedial decision making)
  6. Patricia Popelier, Dynamic Federalism: A New Theory for Cohesion and Regional Autonomy (2021) (critically discusses traditional federal theories and builds on theories that focus on federalism dynamics)
  7. Jaclyn L. Neo, A Contextual Approach to Unconstitutional Constitutional Amendments: Judicial Power and the Basic Structure Doctrine in Malaysia, 15 AsJCL 69 (2020) (using the example of Malaysia to suggest that it is necessary to contextualize constitutional identity to give it a robust character, rather than assuming a set of characteristics most often associated with liberal democratic constitutionalism)
  8. Cornelia Weiss, Discrimination Against Women, Rule of Law , and Culture of Peace: Colombia’s Peace Agreement, The Fletcher Forum of World Affairs (2020) (addressing the post-peace agreement concrete measures and political will needed to transform into reality the conceptual language of ending discrimination against women, cementing the rule of law, and creating a culture of peace in Colombia)  
  9. Maximo Langer, Current Trends in Comparative Law: A Symposium of the Younger Comparativist Committee of the American Society of Comparative Law, 1 Milan Law Review 2 (2020) (discussing the proceedings of the annual YCC conference)
  10. Maartje de Visser, The Future is Urban: The Progressive Renaissance in the City of EU Law, 7 Journal of International and Comparative Law 389 (2020) (arguing that cities should be treated as a distinct subset of subnational authorities and developing a six-fold taxonomy of the roles that cities take on within the EU multilevel structure, viz implementation agents, value communities, front line decision-makers, democracy enhancers, policy developers, and advocates of urban interests in EU decision making)
  11. Waldemar Walczak, Corruption as a Violation of Constitutional Values and Citizens’ Rights, 4 Studia Prawa Publicznego 32 (2020) (discussing how civic rights are eradicated by corruption, at the same time emphasizing a holistic and systemic approach to understanding and interpreting specific processes and decisions confirmed in practice)
  12. Martin Kwan, China’s Rule of Law Development: The Increasing Emphasis on Internationalization of Legal Standards and the Horizontal Rule of Law, NYU Journal of International Law & Politics (2021) (suggesting that there is an ever-increasing emphasis on internationalization of legal standards and rule-based governance in China)

Calls for Papers and Announcements

  1. The 18th ASLI Conference on Law, Technology and Diversity in Asia will be held online on September 15-18, 2021. The deadline for submission of abstracts is March 30, 2021.
  2. The University of Milan hosts an online conference within the SEED project on The Doctor-Patient Relationship in the times of pandemic between care needs and scarce resources: challenges and opportunities, on April 29-30, 2021. The paper proposals may be submitted by March 27, 2021.
  3. The Journal NAD. Nuovi Autorismi e Democrazie: Diritto, Istituzioni, Societa (New Authoritarian Regimes and Democracies: Law, Insitiutions, Society) invites submissions for Vol. 1 in the year 2021. The deadline for essays is April 15 and May 15, 2021, for other submissions.
  4. The European Yearbook of Constitutional Law invites proposals for its 2022 issue on The Constitutional Identity of the European Union. The proposals may be submitted by June 1, 2021.
  5. The European University Institute in Florence hosts a conference on The Dust of Time? Towards a 21st Century Constitutionalism on October 7-8, 2021. The abstracts may be submitted by March 31, 2021.
  6. The Faculty of Law, Lund University in Sweden, announced doctoral student positions in Human Rights Law, specializing in Migration Law.
  7. Ghent University, University of Antwerp, Free University of Brussels and Hasselt University Belgium invite applications for seven PhD and postdoctoral positions on the multidisciplinary research project, Future Proofing Human Rights: Developing thicker forms of accountability.  
  8. The Comparative Constitutions Project has redesigned both the look and functionality of the Constitute database to make it even more powerful for those seeking insight into world constitutions. Read a summary of the changes here, or check out the site and start exploring the new features for yourself!
  9. The Goettingen Journal of International Law invites submissions for its student essay competition on the International Law in Times of a Pandemic. The deadline for submissions is August 1, 2021.

Elsewhere Online

  1. Rahul Narayan, Legislative Privilege and Competence – Facebook (and the Union of India) vs. the Delhi Assembly, Indian Constitutional Law and Philosophy
  2. Anna Wojcik, Historians on Trial, Verfassungsblog
  3. Kriszta Kovacs, Hungary and the Pandemic: A Pretext for Expanding Power, Verfassungsblog
  4. Faizan Mustafa, Target Judicial Patriarchy, Not the Judge, The Hindu
  5. Paul Evans, Parliaments and the Pandemic, The Constitution Unit
  6. Marieta SAFTA, Actualități constituționale (februarie 2021). Jurisprudență relevantă a Curții Constituționale a României. Evenimente internaționale. Publicații, Juridice.ro
  7. Bjoern Dressel, Volatile politics risks undermining Malaysia’s top courts, East Asia Forum
  8. Hans-Martien ten Napel, Is Nigel Biggar’s What’s wrong with Rights? sufficiently realistic?, Canopy Forum
  9. Melissa Crouch, The Constitutional fiction of Myanmar’s Coup, The Jurist
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Published on March 15, 2021
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The Blurred Line Between Law and Politics: The Supreme Court of Nepal Blocks a Parliamentary Dissolution

—Mara Malagodi, The Chinese University of Hong Kong, 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.]

On 23 February 2021, the Constitutional Bench of the Supreme Court of Nepal handed down its long-awaited judgment in the controversial case on the constitutionality of the House of Representatives’ dissolution by Prime Minister K.P. Oli on 20 December 2020.[1] The Prime Minister had advised the President of the Republic to dissolve the House due to infighting within his own party, the Nepal Communist Party (NCP), and claimed that it was impossible for him to govern. The NCP was created in May 2018 as a result of the merger of the Communist Party of Nepal (United-Marxist Leninist) led by Oli, and the Communist Party of Nepal (Maoist Centre) led by Pushpa Kamal Dahal, aka “Prachanda”, the former Maoist rebel. Allegedly, Prime Minister Oli decided to dissolve the House to pre-empt a no-confidence motion about to be tabled by the rival faction in his party. He argued that since the NCP controlled the majority of seats in the Lower House, a new government could not be formed and a fresh electoral mandate was the only way out of the political impasse. The Supreme Court rejected that claim.

In the midst of street protests across the country and an embittered public debate on the move by the Prime Minister, two weeks ago the five judges on the Constitutional Bench rendered a unanimous decision on the thirteen petitions challenging the legality of the dissolution. The Supreme Court boldly ruled the dissolution of the Lower House of the Nepali Parliament unconstitutional and ordered its restoration by March 8 by way of mandamus. The questions that the Court had to answer were (1) whether it was appropriate for the Court to pass judgement on a controversy of high political content such as the advice given by the Prime Minister to the President to dissolve the House of Representatives; (2) whether the dissolution of the House was in accordance with Nepal’s constitution on the basis of the nature and principles of a parliamentary system and the practices developed in Nepal and in other countries that have adopted a parliamentary system; (3) whether the dissolution of the House under Articles 76 and 85 of the 2015 Constitution was indeed constitutional; (4) whether the advice by the Prime Minister to the President to dissolve the House was given in bad faith; and (5) whether it was appropriate to issue the order requested by the petitioners.

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Published on March 10, 2021
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