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Blog of the International Journal of Constitutional Law

One Step Forward, Two Steps Back? Constructive res judicata in Malaysian Constitutional Cases

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

–Shukri Ahmad Shahizam, LL.B. Candidate, London School of Economics

In a long-awaited judgement with large ramifications on cases throughout the country the apex court in Malaysia, the Federal Court, has thrown a spanner into the works of constitutional challenges against restrictions on fundamental freedoms.

Mat Shuhaimi v The Government of Malaysia (Civil Appeal No. 01 (f)-6-03/2017(W)) (Federal Court) (‘Shuhaimi 3’) concerns a constitutional challenge against the Sedition Act 1948 on the basis that its criminalization of ‘sedition’ on a strict liability basis is unconstitutional.

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Published on February 3, 2018
Author:          Filed under: Analysis
 

Crisis and its Opposite: A Reminiscence of Same-Sex Marriage’s Most Successful Year (I-CONnect Column)

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.]

Amidst the talk of global crises of liberal constitutionalism and the rights-based causes of the progressive elite, it is worth taking a moment to pause and take a trip back to the most successful ever year for that banner progressive cause, same-sex marriage.

The trip is a short one, because there is a good argument that the year in question is 2017: the year of Trump and Brexit, of 34% of the vote for Marie le Pen and 12.6 % for the AFD, of populism and nationalism and xenophobia, and of progressives switching from progress to holding the line. And this, I want to suggest, is an instructive little data point to think about when we are trying to make up our minds about the state of the world.

In 2017, same-sex marriage legislation came into force in Finland, and was passed and came into force in Malta, Germany and, after a voluntary postal survey that turned out to signal 61.6% support, in Australia. Same-sex marriage was recognized by judicial decision in Austria, and by judicial decision, suspended for two years to give Parliament time to act, in Taiwan – the first national recognition of same-sex marriage in Asia, albeit a pending one.

Maybe Finland should instead be allocated to 2015, when the legislation was actually passed, and Taiwan kept out of the count until the legal effect of the judicial decision is felt. But even without those two, 2017 would be tied (with 2013) for the year in which the most new states joined the marriage equality fold.[1]

2017 also saw the European Court of Human Rights take another cautious slice out of the margin of appreciation by ruling that signatory states must recognize same-sex marriages performed in other states, although they may recognize them only as civil unions.[2] And to cherry the sundae, though not of course a final judgment nor one directly about same-sex marriage, 2017 also saw a strong signal from Indian Supreme Court justices that they will revisit the 2015 judgment in Naz Foundation upholding the criminalization of sodomy.[3]

This pattern cannot be dismissed as a fluke. More than half of the countries that have recognized same-sex marriage have done so in the last five years. And while it is in the most literal sense early days for 2018, the signs thus far are not of a weakening trend. Although the European Court of Justice has yet to issue its decision, Advocate-General Wathelet has taken the position that EU citizens who conclude same-sex marriages with non-EU citizens are entitled to have these recognized for residency purposes by all EU member states, regardless of whether the state recognizes such unions in its own domestic law.[4] And on January 10, the Inter-American Court of Human Rights issued a sweeping advisory opinion holding that the American Convention on Human Rights obliges all signatory states to recognize same-sex marriage. (The opinion also includes important rules on the rights of transgender persons).[5] The ruling is more significant than its status as an Advisory Opinion can make it appear, since mechanisms such as conventionality control mean that the Inter-American Court’s interpretations powerfully affect member state domestic law.[6]

All this is far from evidence that same-sex marriage will cover the globe any time soon. What I am interested in here, instead, is what it might tell us about the narrative of crisis that haunts so much current constitutional and political discussion.

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Published on January 31, 2018
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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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of India will hear a petition that seeks to live stream the hearings of important constitutional cases in the apex court.
  2. The Constitutional Court of Romania held that the repeal of those provisions in the Civil Servants’ Statute which enabled suspension of civil servants who faced criminal prosecution is unconstitutional.
  3. The Constitutional Court of Benin held that employees in the public sector have the right to strike which was earlier prohibited by a law passed by the Parliament last year.
  4. The Constitutional Court of Zimbabwe will hear the challenge against sections 23 and 71 of the Electoral Act which prohibit Zimbabweans living abroad from voting in local elections without physically going back to the country on February 7, 2018.
  5. The Constitutional Court of Russia rejected opposition leader Alexei Navalny’s complaint against the ban that barred him from being a candidate in the upcoming presidential election due to a past criminal conviction for corruption.

In the News

  1. The Government of Macedonia will send the new language law that mandates the use of Albanian language in all central government institutions, courts etc. to the Venice Commission for scrutiny.
  2. The Government of Canada informed that it will not intervene in the upcoming case before the Quebec Superior Court in which the validity of Quebec’s new law that bans people involved in public services from wearing face coverings will be challenged.
  3. The Chief Observer of the European Union’s Kenya Election Observation Mission advised Kenya to reform the country’s electoral system in light of the recent controversies surrounding the presidential election.
  4. The Parliament of South African convened to draft specific rules regarding impeachment of the President which is provided in Section 89 of the Constitution.
  5. The Supreme Court of Libya will hear an appeal against the draft constitution on the basis of the illegality of its adoption in the Constituent Assembly.

New Scholarship

  1. Nicholas Aroney and James Stellios, Rights in the Australian Federation, European Journal of Law Reform (2018 (looking at the position of rights in the Australian federation against the country’s constitutional history and its constitutional context).
  2. Luke Beck, The Role of Religion in the Law of Royal Succession in Canada and Australia, 43(1) Queen’s Law Journal (2018) (comparatively examining the laws of succession and constitutional protections of religious liberty in Canada and Australia).
  3. George H. Gadbois, Jr., Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds., OUP 2017) (studying the Indian Supreme Court’s history and the role played by some of its major judgments in India’s polity till 1964).
  4. Ernest Lim and Cora Chan, Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law, 135 Law Quarterly Review (2018) (forthcoming) (pointing out the key problems with the current use of Wednesbury unreasonableness to control the exercise of discretion in contract law by English courts).
  5. Yahli Shereshevsky, Targeting the Targeted Killings Case – International Lawmaking in Domestic Contexts, 39(2) Michigan Journal of International law (2018) (forthcoming) (arguing against the Israeli administration’s current approach towards targeted killings in light of the Israeli Supreme Court’s Targeted Killings case in 2006).

Call for Papers and Announcements

  1. The Central European University, Budapest is currently inviting applications for the summer course on ‘Constitution Building in Africa’. The course will be held from July 2-13, 2018. The two-week research course intends to tackle complex societal, political, and legal problems in constitution-building from an interdisciplinary perspective, informed by field experience. The last date to apply for the course is February 14, 2018.
  2. The University College Dublin’s Sutherland School of Law is currently inviting applications for three PhD scholarships. The scholarships cover tuition fees (including for non-EU students) as well as a yearly stipend of €16,000. Even though the University is open to all subject areas, preference would be given to applications focusing on constitutional law. The last date to apply is January 31, 2018.
  3. Journal of Civil and Legal Sciences is inviting submissions for the journal’s upcoming issue (Vol.7, No.1). The last date for submission is February 20, 2018.
  4. Gulf Research Center Cambridge is currently inviting papers for the workshop titled ‘Gulf Cooperation Council Culture and Identities in the New Millennium: Resilience, Transformation, (Re)Creation and Diffusion’. This workshop is a part of the 9th Annual Gulf Research Meeting which will take place at Cambridge University from July 31-August 3, 2018. Interested scholars must submit their papers by February 10, 2018.
  5. The International Association of Constitutional Law is organizing the 10th IACL World Congress 2018 on ‘Violent Conflicts, Peace-Building and Constitutional Law’ in Seoul from June 18-22, 2018. The Association is specifically inviting papers for Workshop No. 27 titled ‘Accommodating Conflicts through Federal Arrangements: from conflict management to secession’. The last date to submit paper proposals is March 30, 2018.

Elsewhere Online

  1. Mathias Hong, The German Network Enforcement Act and the Presumption in Favour of Freedom of Speech, Verfassungsblog
  2. Editorial Board, The courts may address partisan gerrymandering. Virginia and Maryland, take note, The Washington Post
  3. Faizan Mustafa, Grab This Opportunity To Abolish Disqualification Due to ‘Office of Profit’, The Wire
  4. Charles Rothfeld, What’s the harm in a T-shirt?, SCOTUSblog
  5. Janaki Nair, Reading the Constitution, The Hindu
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Published on January 29, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—Born is the King: The Day When Effective Judicial Review Arrived

[Editor’s Note: This is the fifth and final entry in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here, Part II is available here and Part III is available here.]


Tomáš Ľalík, Associate Professor at the Comenius University in Bratislava

Father Christmas or Ježiško (the Baby Jesus in Slovak) usually comes on time but at least as far as the Slovak constitutional law is concerned, Christmas came early this year. The incumbent President Andrej Kiska gave us a reason to celebrate ahead of the holiday when he finally surrender to the judgment I. ÚS 575/2016[1] of the Slovak Constitutional Court (‘SCC’) in the saga over judicial appointments to the Court.[2] His “gift” were three new judges (out of seven possible candidates), sworn in to the office on December 14.[3] The constitutional crisis involving legal, political and media battle is over after three and a half years; and the SCC is again at full strength. This short comment will first answer two critiques raised against the judgment and then foreshadow some long-term implications of the decision.

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Published on January 27, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—Perplexities of the Appointment Process Resolved by Means of “Fire and Fury”

[Editor’s Note: This is the fourth of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here and Part II is available here.]


Kamil Baraník, Assistant Professor of Law, Comenius University in Bratislava

With the decision I. ÚS 575/2016, the I. Senate of the Constitutional Court of the Slovak Republic (SCC) ended a highly controversial and heavily politicized SCC justices’ nomination saga. The case originated in 2014 when a single-party parliamentary majority nominated six candidates for three vacant SCC judgeships. The president refused to appoint five of those candidates and claimed a broad discretionary right to that effect, based on a previous generally binding SCC’s constitutional interpretation that settled another prominent struggle over the scope of presidential appointment powers – the General Prosecutor Case, PL. ÚS 4/2012. The questionable quality of the proposed SCC candidates immediately raised eyebrows, as did the evident lack of safeguards against political exploitation of the nomination process.

The president ultimately accepted the SCC I. Senate decision and following its ratio appointed three new SCC justices. The president, however, announced that the struggle over the future of SCC’s appointment process is not over. In such a controversial issue that steadily raised the temperature of the political climate in Slovakia for years, one would expect at least an indication of a conciliatory tone in the SCC’s decision. Instead, the I. Senate resolved this constitutional dispute between president and the legislature by means of “fire and fury.”

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Published on January 26, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—The President’s Appointments

[Editor’s Note: This is the third of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, and Part I is available here.]


Marek Domin, Associate Professor at the Comenius University in Bratislava

The decision of the Constitutional Court (CC) of the Slovak Republic – I. ÚS 575/2016, and the following appointments to the Court by President Andrej Kiska, ended a long-drawn interpretive dispute over the extent of the presidential power to appoint the CC judges. Almost a quarter of seats on the Court had not been occupied in 2014, and one of its senates de facto ceased to exist. This dispute was settled, but new questions emerge. There remains a concern whether President Kiska was correct to appoint the judges he finally did because two out of his three appointments were selected by the National Council (NCSR) for the same vacancy. Had the CC considered this practical issue in the decision, the President could have benefited from the instruction to make an apt choice.

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Published on January 25, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”–Intermezzo to the Constitutional Conflict in Slovakia: A Case Critique

[Editor’s Note: This is the second of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here.]


Simon Drugda, Centre for Socio-Legal Studies, University of Oxford

On December 6 the first Senate of the Slovak Constitutional Court (CC) held that President Andrej Kiska infringed rights of the CC candidates when he rejected them, again, for lack of interest in constitutional law, language skills, or no publication in the field in a reputable outlet (I. ÚS 575/2016).

The CC Appointments Case raised several realist concerns about our judges that have not been addressed yet. For, example, what level of constitutional literacy should we require of a CC judge?[1] Do deliberate, low-quality appointments to the Court trigger separation of powers concerns? Does the ill repute or lack of professional credentials of a single judge depreciate the whole Court? Is the vetting of nominees in the Constitutional Committee of the National Council (NaCo) thorough enough?[2] These questions are all mightily important but in the immediate context, not the right ones to ask.

It is necessary first to recognize the mistakes in the handling of the case. Only then we will be able to move past this controversy and focus on the quality of the future CC appointments. I present a case criticism of one procedural aspect of the I. Senate decision.

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Published on January 24, 2018
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Introduction to I-CONnect Symposium: The Slovak Constitutional Court Appointments Case

[Editor’s Note: I-CONnect is pleased to feature a special symposium on the recent Slovak Constitutional Court Appointments Case. The symposium will feature five parts, including this introduction. We are grateful to Simon Drugda for partnering with us to organize this symposium.]


Simon Drugda, Centre for Socio-Legal Studies, University of Oxford

Late last year, on December 6, the Constitutional Court of the Slovak Republic held that President Andrej Kiska infringed the rights of all candidates for the three vacant seats on the Constitutional Court. The President finally decided to appoint judges Jana Laššáková, Mojmír Mamojka, and Ladislav Duriš to the Court on December 14, 2017.

The case has on several occasions brought into question the institutional strength of and support for the Constitutional Court. We are therefore grateful to I-CONnect, for allowing us to host a symposium this week that will look back on this important controversy and asses the strengths and weaknesses of the Senate decision that concluded it – the decision I. ÚS 575/2016.

The symposium will feature contributions from four scholars: (1) Šimon Drugda (an MSt candidate at Oxford); (2) Marek Domin (Comenius University); Kamil Baraník (Comenius University); and (4) Tomáš Ľalík (Comenius University).

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Published on January 23, 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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Connecticut’s Supreme Court ruled that the State’s educational funding formula is constitutional because it does not violate the equal protection provisions of the Connecticut Constitution.
  2. A federal appeals court in California ruled that sex for sale is not a constitutional right.
  3. British Columbia’s Supreme Court ruled that the Canadian federal law of solitary confinement is unconstitutional.
  4. A Florida court ruled an abortion waiting period unconstitutional.
  5. The Supreme Court of Sri Lanka confirmed that presidential term is only for five years.
  6. The European Court of Justice ruled that same-sex spouses have the same rights of residency as opposite-sex couples.

In the News

  1. Polish Supreme Court Justices denounced the government’s judicial reforms as unconstitutional.
  2. The Supreme Court of India agreed to re-examine the law that criminalized sex between persons of the same-sex.
  3. The Organization for Security and Co-operation in Europe’s (OSCE) Representative on Freedom of the Media, Harlem Désir, calls Turkish authorities to ensure the Turkish Constitutional Court decision will be implemented and that the journalists will be released.
  4. The Supreme Court of Iraq decided to establish a federal council to supervise provisions passed by Parliament.
  5. The U.S. Department of Justice introduced new immigration court policies to reduce the caseload in immigration courts.
  6. The Philippines voted to convene the chamber as a constitutional assembly.
  7. The U.S. Supreme Court will decide legality of President Donald Trump’s rules on travel to the United States.
  8. The French Constitutional Court struck down a legislative provision prohibiting access to websites that support terrorism.

New Scholarship

  1. Katalin Kelemen, The Hungarian Constitutional Court and the concept of National Constitutional Identity, Ianus – Diritto e finanza, no. 15-16/2017, pp. 23-33 (discussing a December 2016 Hungarian Constitutional Court judgment on Hungarian state sovereignty and constitutional self-identity in a comparative perspective)
  2. Yaniv Roznai and Leticia Regina Camargo Kreuz, Conventionality Control and Amendment 95/2016 – A Brazilian Case of Unconstitutional Constitutional Amendment, Direitos Fundamentais na Nova Ordem Mundial (Ana Cláudia Santano, Emerson Gabardo and Bruno M. Lorenzetto eds., Editora Ithala, 2018 forthcoming) (analyzing the compatibility of Amendment 95 of December 2016 to the Brazilian Constitution with the ‘stone clauses’ of the constitution)
  3. Thomas H. Lee, Natural Born Citizen, American University Law Review, Vol 67, No. 237, 2017 (analyzing Article II of the U.S. Constitution regarding presidential eligibility)
  4. Antal Berkes, The Court of Justice of the European Union As an Institutional Model for the African Court of Justice and Human Rights, in Loïc Cadiet, Burkhard Hess, Marta Requejo Isidro (eds.), Approaches to Procedural Law: The Pluralism of Methods (Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, no. 9), Nomos, 2017 forthcoming (comparing the African Court of Justice and Human Rights, the Court of Justice of the European Union and the European Court of Human Rights on procedural law)
  5. Kevin R. Reitz, American Exceptionalism in Crime and Punishment, Oxford University Press (2017) (exploring American exceptionalism in crime and punishment through comparative political, economic, and historical analyses)
  6. Rebecca J. Scott, Leonardo Augosto de Andrade Barbosa & Carlos Henrique Borlido Haddad, How Does the Law Put a Historical Analogy to Work?: Defining the Imposition of “A Condition Analogous to That of a Slave” in Modern Brazil, 13 Duke Journal of Constitutional Law & Public Policy 1 (2017) (analyzing the term of “slave-labor”in Brazilian law)
  7. Wojciech Sadurski, How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding, (detailing the political and legal changes occurring in Poland after 2015 elections)

Calls for Papers and announcements

  1. The Academia Brasileira de Direito Internacional calls for papers for the 16th Brazilian Congress of International Law, to be held on August 22-25, 2018, in Foz do Iguaçu, under the sponsorship of the Universidade Federal da Integração Latino-Americanaand the Univerisdade de Sao Paulo.
  2. The University of Rennes and the University of Paris Descartes, Paris, France call for papers for a conference to be held on April 4, 2018 and October 9, 2018 in Rennes and Paris, France. The topic is “French law versus Common law au XIXe siècle. La naissance d’une concurrence entre modeles juridiques.”
  3. The Faculty of Law at the Chinese University of Hong Kong calls for papers for a conference on Teaching and Learning in Law – “Directions in Legal Education 2018” to be held on June 1-2, 2018.
  4. Global constitutionalism in partnership with Pluricourts calls for papers for a workshop in the field of global constitutionalism to be held in Berlin Social Science Center on 4-6 July 2018.
  5. The University of Birmingham calls for papers for the Conference European Law & Policy in Context – The Future of European Law & Policy VI to be held in Birmingham on June 28-29, 2018.
  6. Papers are invited for a conference on Challenges to EU law and Governance in the Member States, to be held at the European University Institute Florence on 8 June 2018.

Elsewhere Online

  1. Pierre De Vos, The Constitution and Land Expropriation: How Would It Work? Daily Maverick
  2. Christophe Ingrain et Rémi Lorrain, Des doutes légitimes sur la constitutionnalité du délit de favoritisme, Dalloz Actualités [Article in French]
  3. Ruthann Robson, SCOTUS to Hear Trump v. Hawai’I on Travel Ban 3.0, Constitutional Law Prof Blog
  4. Katrien Verhesschen, POMFR: Challenges in the Field of Economic and Financial Crime in Europe and the US, European Law Blog
  5. Sebastien Platon, 30 days, six months, … forever? Border control and the French Council of State, Verfassungsblog
  6. Jenny Gesley, Germany: University Admission Rules for Medical Studies Partially Unconstitutional, Library of Congress
  7. Sidharth Chauhan, A Cathartic Episode For The Higher Judiciary In India, Live Law India
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Published on January 22, 2018
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In Defence of Constitutionalism

Dr. Rohit De, Assistant Professor at Yale University, and Dr. Tarunabh Khaitan, Associate Professor at the Universities of Oxford and Melbourne

On the 12th of January 2018, four of the five senior-most judges of the Indian Supreme Court who constitute its ‘collegium’ held an unprecedented joint press conference. They released an open letter they had written to the fifth member of the collegium, the Chief Justice (CJ) of India and complained that long-standing conventions governing the CJ’s role as master of the roster were being ignored.

The immediate provocation is the allegedly arbitrary and politically influenced use of the administrative powers of the CJ of India. Because judges in the Indian Supreme Court sit in benches of varying size rather than en banc, normally the composition of each bench is decided randomly. Constitutional practice, however, has permitted the CJ to override the automated system of assigning cases for purposes that include creating a more coherent doctrine, speeding up or delaying a politically sensitive matter and preserving the spirit of the constitution. In practice, however, this administrative power has also been used to handpick benches comprising like-minded judges, so that a CJ’s judicial opinion is more likely to prevail. As legal scholar Nicholas Robinson discovered, between 1950 and 2011 CJs found themselves in a minority in only 10 cases decided by a constitutional bench.[1] What, then, precipitated the controversy at hand? It is the suggestion that these selective allocations might primarily benefit the governing political party that puts this case on a different, and dangerous, footing.[2]

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