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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


Matteo Mastracci, Digital Rights Researcher, Balkan Investigative Reporting Network (BIRN), and 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. Hungary’s Constitutional Court quashed the referendum initiated by the opposition party on government’s controversial plans to build a Chinese university in the Hungarian capital and extend unemployment benefits to a maximum of nine months from the current three-month period.
  2. South Korea’s Constitutional Court will hold next July 14 an open hearing regarding a case on capital punishment. A committee under the Catholic Bishops’ Conference of Korea filed a petition in 2019 arguing that the death penalty is unconstitutional and requested a court review.
  3. Taiwan’s Constitutional Court has declared as constitutional a central government order invalidating all local government regulations requiring that food products be free of the controversial veterinary drug ractopamine.
  4. The Constitutional Court of South Africa determined that those who were unable to renew their firearm licences in time and were subsequently barred from further obtaining a valid licence, are allowed to follow the processes as stipulated in the Firearms Control Act to obtain a valid firearm licence for such firearms.
  5. Zimbabwe’s Constitutional Court has ruled that the legal age of consent for sex should be raised to 18 from 16. The ruling struck down as unconstitutional provisions in the Criminal Law that set the age of consent for sex at 16.

In the News

  1. Albania’s parliament is due to elect a new President on Saturday from the ranks of the ruling Socialist Party, which has not disclosed any candidates just one day before the vote takes place.
  2. Allies of Central African Republic President Faustin-Archange Touadera have proposed changes to the constitution that would let him keep running for office, prompting protests from the opposition.
  3. Denmark will join the European Union’s defence policy after the referendum results of Wednesday (1 June) on whether to end three decades of opting out of EU defense policy. The vote was called after Russia’s invasion of Ukraine.
  4. The German parliament voted on Friday for a constitutional amendment to create a 100-billion-euro ($107-billion) fund beefing up its military defences in the face of an emboldened Russia.
  5. The Seychelles National Assembly voted for an amendment to the Constitution of the island state that gives the Seychelles Defence Forces (SDF) the right to enforce domestic law in relation to public security, environmental protection and maritime security.

New Scholarship

  1. Jack Goldsmith, The United States’ Defend Forward Cyber Strategy (June, 2022) (providing an empiric and legal analysis of United States’ defense policy)
  2. Kenny Chng, The relevance of purpose in constitutional equal protection challenges to executive action (May, 2022) (analysing challenges to executive action based on generalized guarantees of equal protection)
  3. Matthew Groves and Anita Stuhmcke, The Ombudsman in the Modern State (May, 2022) (exploring current and future challenges for the Ombudsman institution and the systems of government within which they operate)
  4. Stephen Tierney, The Federal Contract. A Constitutional Theory of Federalism (June, 2022) (offering a comparative analysis of federal systems from the perspective of constitutional theory)
  5. Vicki C. Jackson and Yasmin Dawood, Constitutionalism and a Right to Effective Government? (forthcoming, August 2022) (inquiring on the relationship between constitutionalism and capacity of governments to perform basic functions)

Calls for Papers and Announcements

  1. European Law and Governance School in collaboration with the NKUA Applied Philosophy Research Laboratory is organizing a summer course on “ARTIFICIAL INTELLIGENCE:  Α philosophical and legal discourse on AI” to be held next 25-29 July in Athens. Applicants should submit an updated CV and letter of motivation by 30 June 2022.
  2. The Civil Law department at Leiden Law School is looking for a Researcher (Postdoc) in European Consumer Law that will work on the research project “These Shoes Don’t Fit! – How can consumer interests be protected when consumer identities are increasingly diffuse?”. Deadline for applications is 26 June 2022.
  3. The Department of International Law at Ludovika – University of Public Service, Budapest, Hungary invites applicants to submit applications for the conference on “War and Peace in the 21st Century – The Lifecycle of Modern Armed Conflicts” to be held next 23 September 2022. Deadline for abstract submission is 15 July 2022.
  4. The Faculty of Law of the University of Trento invites candidates active in International Law to apply for a position of Full Professor level. The post is for a permanent position. The area of research is International Law. Applications must be submitted online by 16 June 2022.
  5. The International Review of Law, Computers & Technology invites manuscript submissions for a special issue on digital and online violence. Interested authors should submit abstracts of no more than 500 words and up to 4 keywords by 3 October 2022.

Elsewhere Online

  1. Ahmed Ragib Chowdhury, On the Restriction of International Organizations’ Immunity by the Supreme Court of the United States, Völkerrechtsblog
  2. Catherine Owen, Varieties of authoritarianism, and how they might be studied, The Loop
  3. Fjori Sinoruka, Air of Secrecy Hangs Over Election of Albanian President, Balkan Insight
  4. Hamdi Firat Buyuk, Turkey’s Planned Internet Law to Criminalise ‘Spreading Misinformation’, B.I.R.D.
  5. Tainá Garcia Maia, The subtle erosion of democracy in Latin America: the case of Lula in the Human Rights Committee, EJIL: Talk!
  6. Thomas Perroud and Jérôme Graefe, The French Constitutional Council’s Problem with Impartiality, Verfassungsblog
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Published on June 6, 2022
Author:          Filed under: Developments
 

Jurists Against Bolsonaro’s Attacks on Courts

Emilio Peluso Neder Meyer (Federal University of Minas Gerais and Brazilian National Council for Scientific and Technological Development, Brazil)

Estefânia Maria de Queiroz Barboza (Federal University of Paraná, Brazil)

Brazilian President Jair Bolsonaro, even before being elected in 2018, opened a fierce attack on the electoral system. Although he was the winner at that time, he criticized the integrity of electronic ballots and spread fake news on a system that had never shown any evidence of fraud in more than two decades of use. In this sense, Bolsonaro followed the authoritarian and populist leaders’ playbook of casting doubt on the electoral process in order to anticipate potential political defeats. The peculiarity of the Brazilian case is that elections are overseen by the judicial branch, especially, the Electoral Superior Court.

Aiming at increasing the juridical and political costs of Bolsonaro’s unconstitutional and illegal plans, a group of several Brazilian constitutional scholars and political scientists created the Demos, an Observatory for Monitoring Electoral Risks in Brazil. Joined by academics of the most diverse political positions, Demos filed a petition for the United Nations Special Rapporteur on the independence of judges and lawyers, Diego García-Sayán. In a long piece co-written by Masters and PhD students from the Federal University of Paraná, those academics agreed upon the diversity and range of Bolsonaro’s attacks on courts in Brazil.

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Published on June 3, 2022
Author:          Filed under: Brazil
 

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Sassari (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. Italy’s Constitutional Court ruled that children should not automatically be given the surname of their father. The court said that a child should instead have the surnames of both parents, except in the case they agree on one surname.
  2. On 11 May 2022, Colombia’s Constitutional Court ruled by 6 votes to 3 to decriminalize medically assisted suicide.
  3. South Korea’s Constitutional Court ruled that the lawyers’ code of conduct banning them from joining online legal counseling platforms is unconstitutional.
  4. German Federal Constitutional Court ruled that it is not unconstitutional the absence of differential contribution rates between parents and childless people for mandatory contributions to public health insurance and public pension. By contrast, it is unconstitutional that the number of children is not taken into account in contributions to long-term care insurance.
  5. The U.S. Supreme Court has ruled in two Arizona death penalty cases that 1990s amendments to the federal habeas corpus law permit state prisoners who were provided ineffective representation at trial and in post-conviction proceedings to argue that their counsel were ineffective, but bar them from presenting evidence of this ineffectiveness once the case had reached federal court.
  6. The Turkish Constitutional Court in the decision n. 2017/39464, published in the Official Gazette on 27 April 2022, evaluated the freedom of expression of public personnel stating that it is legitimate for the state to impose duties and responsibilities on public personnel, including the duty of royalty. The Constitutional Court further stated that similar duties do not eliminate the freedom of expression considering that public personnel can make criticisms, provided that their expressions are balanced and objective.

In the News

  1. On 29 May 2022 presidential election will take place in Colombia.
  2. The lower house of Poland’s parliament, the Sejm, has approved legislation to abolish the disciplinary chamber for judges, one of the European Commission’s central demands to unlock billions of euros of funds frozen over rule-of-law concerns.
  3. On 26 May 2022, U.S. Senate Republicans blocked a bill designed to combat domestic terrorism.
  4. From 23 to 27 May, a delegation from the European Parliament’s Internal Market Committee visited the company headquarters of Meta, Google, Apple and others, in Silicon Valley to discuss in person the Digital Services Act package, and other digital legislation, and hear the position of American companies, start-ups, academia and government officials.
  5. On 19 May 2022, the European Parliament adopted its review of the Commission’s 2021 annual Rule of Law Report with 429 votes for, 131 against and 34 abstentions.

New Scholarship

  1. Dominique Custos, American federalism and the test of the covid-19: a window into its strengths and weaknesses / Le fédéralisme états-unien à l’épreuve du covid-19: un miroir sur ses forces et faiblesses, Confluence des Droits-La Revue, 2022 (showing that neither federalism in general nor dualistic federalism in particular is fatally dysfunctional when facing the test of a pandemic)
  2. Mark Findlay, Jolyon Ford, Josephine Seah, Dilan Thampapillai (eds.), Regulatory Insights on Artificial Intelligence (2022) (investigating the relationship between law and artificial intelligence governance, and the need for new and innovative approaches to regulating AI and big data).
  3. David Schultz, Constitutional Precedent in US Supreme Court Reasoning (2022) (examining the role of constitutional precedent in U.S. Supreme Court reasoning).
  4. Francois Venter, The Language of Constitutional Comparison (2022) (exploring the problems related to terminological hegemony in comparative law).
  5. Mohammad Ibrahim, The judicialisation of discrimination in the Indonesian constitutional court (2022) (seeking to determine the extent to which the Indonesian Constitutional Court has protected the citizens’ fundamental rights of equality and against discrimination).

Calls for Papers and Announcements

  1. The yearly “Federal Scholar in Residence Programme” welcomes both academics and practitioners to the Institute for Comparative Federalism at Eurac Research in Bolzano (Italy). The winner of each year’s programme is granted a research residency of up to 3 weeks at the research center. Applications are to be sent directly to the program manager by 1 July 2022.
  2. The Italian-Spanish seminar of constitutional studies invites young scholars to submit papers for the sixth edition of the colloquium that will be held in Granada in October 2022. A call for papers has been launched and will close on 5 June 2022.
  3. Universidad de La Sabana (Colombia) offers a course on the Trial of Jesus led by Professor Joseph Weiler. In this seminar, students will analyze the significance of this trial from legal, political and theological perspectives. The seminar will be held entirely on MS Teams and will be taught in Spanish from 7 to 24 June 2022.
  4. The International Association of Constitutional Law (IACL), in cooperation with the Union of Turkish Bar Associations (TBB), invites submissions for the roundtable on “Environment, Climate Change and Constitutionalism” that will be held in Ankara on 20-21 October 2022. Interested scholars are invited to submit a CV and an abstract no longer than 500 words by 1 July 2022.
  5. The deadline to present an abstract for the international scientific conference: “Freedom of Religion or Belief in Times of Migration” (6-7 October 2022, Modena, Italy) has been extended to 15 June 2022. The conference is organized by the Observatory on Religious Freedom in the jurisprudence of the European Court of Human Rights (ORFECT) together with the University of Modena and Reggio Emilia.

Elsewhere Online

  1. Johannes Buchheim, Gilad Abiri, The War in Ukraine, Fake News, and the Digital Epistemic Divide, Verfassungsblog
  2. Renáta Uitz, Illiberals of the World Unite in Budapest – Yet Again, Verfassungsblog
  3. Janine Prantl, Ian Matthew Kysel, Generous, but Equal Treatment? Anti-Discrimination Duties of States Hosting Refugees Fleeing Ukraine,  EJIL Talk
  4. Aoife Nolan, The Children are the Future – Or Not? Exploring The Complexities of the Relationship between the Rights of Children and Future Generations, EJIL Talk
  5. Vedran Dzihic, Paul Schmidt, The Russia-Ukraine war must be the impetus for a new EU enlargement and neighbourhood policy, LSE blog
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Published on May 30, 2022
Author:          Filed under: Developments
 

Video Book Interview: “Constitutional Erosion in Brazil” (Hart 2021)


Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin


The first book in the new Hart Series on “Constitutionalism in Latin America and the Caribbean” is titled “Constitutional Erosion in Brazil,” authored by Emilio Peluso Neder Meyer, professor of constitutional law at the Federal University of Minas Gerais.

The co-editors of the new series–Carlos Bernal, Catarina Santos Botelho and me–recently discussed this new book with the author in a short video interview. We also discussed how to submit proposals to this new Series. The full video runs roughly 25 minutes.

To submit a proposal or to discuss your ideas for a book in the Series, please contact one of the co-editors or Kate Whetter, Senior Commissioning Editor at Hart.

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Published on May 24, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Anubhav Kumar, Advocate, Supreme Court of India & Researcher at Bar Association of India (BAI)


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. Supreme Court of India orders release of A G Perarivalan, convict in the Former Prime Minister Rajeev Gandhi assassination case. In his plea, Perarivalan had said the Governor was yet to take a call on a recommendation by the state government on September 9, 2018, to grant him remission and release him forthwith.
  2. The Kansas Supreme Court allows Republican Voting Map to Stand, that a lower court had ruled unconstitutional
  3. Tennessee Supreme Court rules governor’s school voucher program is constitutional, rules in favor of government.
  4. Turkish Constitutional Court issues Decision on Freedom of Expression, states that it is legitimate for the states to impose duties and responsibilities on public personnel, including duty of royalty.
  5. The Constitutional Court of Colombia, with 6 votes in favor and 3 against, decriminalized medically assisted suicide for patients suffering from serious or incurable illnesses, becomes first and only country to do so in Latin America and Caribbean.

In the News

  1. Kingston students walkout to protest Supreme Court of Canada’s decision.
  2. House speaker Nancy Pelosi slams U.S Supreme Court As ‘Dangerous To Freedoms In Our Country’
  3. The Oklahoma lawmakers pass near-total abortion ban, except in cases of medical emergency, rape or incest, and allow private citizens to sue anyone who helps women get abortions except in those narrow cases.
  4. Taliban dissolves Afghanistan’s human rights commission as ‘unnecessary’. It dissolved five key departments of the former US-backed government, including the country’s human rights commission, deeming them unnecessary in the face of a financial crunch, an official said.
  5. Chile finalizes new draft constitution to replace Pinochet-era document.
  6. The Guinea-Bissau president dissolves parliament, three months after he had said he had survived a coup attempt, alleging corruption.

New Scholarship

  1. Richard Albert and Richard Stacey, The Limits and Legitimacy of Referendums (2022) (examining how referendums can be used as effective and reliable mechanism of popular sovereignty and democratic choice)
  2. Roger Daniel Kelemen, Appeasement, ad infinitum (2022) (critically examining the European Commission’s willingness to appease Europe’s pet autocrats)
  3. Neha Tripathi and Anubhav Kumar, Changing Dynamics of Constitutionalism: South Asia’s Tryst with Constitution (2022.) (arguing that it is only practical and pragmatic to study constitutionalism with specific reference to the modern discourse of democracy, judicial review, separation of power, and human rights in local context)
  4. Vincent Chetail, The International Organization for Migration and the Duty to Protect Migrants: Revisiting the Law of International Organizations (2022) (revisiting the law of international organizations as an avenue of legally binding commitments for International Organization for Migration (IOM)
  5. Saumya Saxena, Divorce and Democracy A History of Personal Law in Post-Independence India (2022) (mapping the trajectories of marriage and divorce laws of Hindu, Muslim, and Christian communities in post-colonial India, and exploring the dynamic interplay between law, religion, family, minority rights and gender)
  6. Osamudia James, Superior Status: Relational Obstacles in Law to Racial Justice and LGBTQ Equality (2022) (examining to the role of status in the development of equality law in the United States)

Calls for Papers and Announcement

  1. The International Association of Constitutional Law (IACL) In collaboration with the International Center for Comparative Environmental Law (CIDCE), the Association of Research on Constitutional Law (ARCL) is organizing a Roundtable on “Environment, Climate Change and Constitutionalism,” Ankara, October 20-21, 2022 and invites abstract by July 1 2022.
  2. Luiss School of Government organizes the 11th edition of the Summer School on “Parliamentary Democracy in Europe,” in Rome, on July 11-15, 2022. Deadline has been extended until June 25, 2022.
  3. The University of Milan organizes a conference on the topic “The complex cultural, geopolitical and legal dimension of the conflict in Ukraine: Origins, context and long term consequences.” The conference will take place on May 24, 2022.
  4. The International Journal of Transnational Justice (IJTJ) calls for papers 2023 Special Issue. The deadline for submission is June 1, 2022.
  5. The University of Ferrara hosts the first roundtable of the Jean Monnet Module “EU Specialized Judicial Protection,” coordinated by Prof. Jacopo Alberti, on the topic “EU agencies’ Boards of Appeal.” The event will take place on June 17, 2022, in a physical format, open to a limited audience. To participate, send a request before June 6, 2022, to mriccardo.torresan@unife.it, together with a brief CV.
  6. Droit Public Comparé-Comparative Public Law (DPC-CPL) calls for papers for special issue in the field of comparative public property law. The due date for abstract submission is May 31, 2022.
  7. The University of Bristol in collaboration with The Society of Legal Scholars (SLS) calls for papers for Collaborative Workshop for PhD Students and Early Career Researchers in Labour Law, Migration & Asylum, Human Rights, and Public Law on July 13, 2022. The abstract shall be submitted by May 25, 2022 here.
  8. Application for 2023-2024 Fulbright-Nehru Postdoctoral Research Fellowship, for Indian faculty and researchers who are in the early stages of their research careers in India are open. Due date August 17, 2022.

Elsewhere Online

  1. Lauren Loxton, Two Rights can make a Wrong: Judges’ Rights to Freedom of Expression and Religion, African Law Matters
  2. Sebastián Serna Herrera, The Unconstitutional Constitutional Amendment Introducing Life Imprisonment in Colombia, IACL-AIDC Blog
  3. Sarah Isgur, Why Activists Should Want to Lose Supreme Court Cases, Politico
  4. Oskar Sherry, Proposed Reforms to the UK Human Rights Act, Oxford Human Rights Hub
  5. Claire Methven O’Brien and Jacques Hartmann, The European Commission’s proposal for a directive on corporate sustainability due diligence: two paradoxes, EJIL Talk
  6. Valentina Golunova, Manannikov V. Russia: The Final Nail In The Coffin Of Political Dissent?, Strasbourg Observers
  7. Swapnil Tripathi, 44 years of the 44th Amendment, The ‘Basic’ Structure
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Published on May 23, 2022
Author:          Filed under: Developments
 

Towards a More Inclusive Constitutional Discourse: Overcoming Linguistic Barriers

Maartje De Visser, Singapore Management University, Yong Pung How School of Law

[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]

The rise of English as the lingua franca is a well-known phenomenon that has affected many areas of our lives. When it comes to legal scholarship too, the current discourse is English-centered and conducted mainly through journals, monographs and edited volumes published by reputable publishing houses in English-speaking jurisdictions. Having a shared medium of communication holds promise for vastly expanding the academic comparative dialogue in depth and breadth as the pool of prospective participants is enlarged beyond those from Anglophone jurisdictions. The difficulty is realizing this vast potential. In my previous blogpost, I alluded to linguistic barriers that may affect the inclusion of narratives of the Global South in the comparative constitutional discourse. More generally, how many scholars from non-Anglophone jurisdictions (including in the Global North!) who study constitutional topics are sufficiently well-versed in English to produce the kind of academic work that meets the expectations of leading English journals and publishing houses? Even assuming the requisite linguistic ability exits, the willingness and time to may be lacking. Legal scholars are expected to contribute to the domestic constitutional discourse, critically evaluating new legislative or constitutional initiatives, facilitating judicial accountability by assessing the legal quality of domestic court decisions, or discussing the constitutional implications of major events in a country’s public or political life. Recent scholarship has put forward a stronger conception of the role of the constitutional academy as knowledge institutions or constitutional actors, playing a part in protecting constitutional democracy. In countries that have a small legal academy or those that are experiencing high levels of constitutionally salient activity, the domestic responsibilities for scholars may limit their capacity to (also) contribute to the wider comparative constitutional literature.

As such, while non-native speakers may eventually have a sustained advantage as they are able to take cognizance of materials from multiple jurisdictions, the fact remains that the mainstream English-centric field today is dominated by native speakers, whose interests in particular topics or legal systems have a formative influence on the content and direction of the field. Indeed, the existence of a lingua franca should not make us forget the continued existence and development of comparative constitutional law discourses in other languages. For the most part, those different national discourses exist and develop alongside, but not in conversation with, the English scholarship read and produced by the mainstream comparative constitutional community – and the latter is the poorer for it. 

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Published on May 18, 2022
Author:          Filed under: Analysis
 

Afghanistan’s Unwritten Constitution under the Taliban

Shamshad Pasarlay, Visiting Lecturer, The University of Chicago Law School

[Editor’s Note: This is one of our ICONnect columns. For more information on our 2022 columnists, see here.]

After taking control of Afghanistan last summer, the Taliban wasted no time in tearing down the legal and political order that had developed under the country’s 2004 Constitution. However, Afghanistan’s de facto new rulers are yet to craft an alternative for the constitutional order that they have, for all practical reasons, dethroned. The legal and constitutional founding of the Taliban authority thus remain remarkably obscure.

In fact, the Taliban have only added to the uncertainty surrounding their constitutional vision and obfuscated the matter by making inconsistent declarations about the constitutional order that they wish to install in Afghanistan. In September 2021, for instance, the Taliban indicated they would implement the 1964 Constitution of Afghanistan as an interim charter. Nonetheless, the 2004 Constitution is still available on the website of the Ministry of Justice as Afghanistan’s “enforced constitution,” and Taliban leaders have pledged to respect its rules (for more on this point, see here).  

To make matters even more confusing, the Taliban have in many places suggested that they reject the values and rules that are enshrined in both the 1964 and the 2004 constitutions. Taliban official conduct is also obviously and unapologetically inconsistent with the democratic and liberal values enshrined in both the 1964 and the 2004 basic laws. In public statements the Taliban have made no secret of their hatred and animus towards the 2004 Constitution, decrying the document as a foreign imposition.

The question, then, is what, if anything, forms the constitutional framework of the current Taliban government? I wish to explore this question in some detail here.

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Published on May 17, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Irina Criveț, PhD Candidate in Public Law, Koç University


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 Attorney General of the Republic of Portugal defended the nullity of the Constitutional Court’s judgement no.268/2022, the Metadata Act, which imposes a retroactive ban on the collection of this type of information for the purpose of a criminal investigation. The Constitutional Court will evaluate the request.
  2. A team of lawyers from the Public Interest Litigation Network and Daphne Caruana Galizia Foundation challenged Malta’s freedom of information act at the Constitutional Court. They argue that the remedies it provides are unconstitutional because they do not respect the freedom of expression and information.
  3. The Polish Constitutional Tribunal postponed the hearing in case K 8/21 concerning the compliance of EU law with the Constitution to 21 June 2022.
  4. The Constitutional Court of South Africa will decide whether the Copyright Act is unconstitutional for limiting access to books in accessible formats for persons with visual disabilities.
  5. The Constitutional Court of Colombia ruled to decriminalise assisted medical suicide for patients.
  6. The Supreme Court of Canada ruled that defendants accused of violent crimes such as homicide and sexual assault can use self-induced extreme intoxication as a defense.

In the News

  1. Professor Dainius Zalima, former President of the Constitutional Court of Lithuania, was nominated as a candidate to the UN Human Rights Committee for 2023-2026.
  2. On 5 June, the Kazakhs will participate to a national referendum on the draft amendments to the Constitution that intends to transform the country from a presidential system to a parliamentary one.
  3. Illinois Supreme Court sitting justice Justice Rita Garman will retire on 7 July.
  4. The US Senate passed legislation expanding security for supreme court justices and their immediate family members.
  5. The Albanian Parliament rejected the opposition’s resolution condemning the Srebrenica Genocide committed by Serbian troops in 1995.
  6. The Turkish Parliament passed a bill on the prevention of violence against women and health care workers.
  7. The Council of States, Switzerland’s upper house, will vote on the Parliament proposal to lower the tax for tampons and sanitary pads from 7.7% to 2.5%.

New Scholarship

  1. Ximena Benavides, Inequitable by Design: The Law and Politics of Global COVID-19 Vaccine Access – and A Way Out, forthcoming Michigan Journal of Law Reform (examines the *patent culture* that politicises healthcare access in the context of COVID-19 vaccination)
  2. Erica Howard, Headscarves and the CJEU: Protecting Fundamental Rights and Pandering to Prejudice, the CJEU Does Both, Maastricht Journal of European and Comparative Law 29, no. 2 (2022) (explores whether the CJEU offers more protection to Muslim women who want to wear headscarves at work for religious reasons)
  3. Fruzsina Gardos-Orosz, Kinga Zakarias (eds) The main lines of the jurisprudence of the Hungarian Constitutional Court 30 case studies from the 30 years of the Constitutional Court (1990 to 2020) Nomos (2022) (complies 30 landmark case studies from Hungarian jurisprudence)
  4. James E. Fleming, Constructing Basic Liberties, A Defense of Substantive Due Process, (forthcoming University of Chicago Press) (2022) (analyses the doctrine of substantive due process and argues “that substantive due process is a worthy practice that is based on the best understanding of our constitutional commitments to protecting ordered liberty and securing the status and benefits of equal citizenship for all.”)
  5. John V. Orth, “Shall Not be Construed”: Reversal of Supreme Court Decisions by Constitutional Amendment, Florida Law Review Forum 72 (2022) (examines the implications of “small changes of wording can signal large changes of thought in the US Constitution” by exploring the example found in the Eleventh, Sixteenth Amendments and the Reconstruction Amendments)

Calls for Papers and Announcements

  1. The ICON-S Committee on Community and Engagement is hosting a virtual workshop on ‘Towards an International Academic Career: Doing a Ph.D. in Public Law’ on 2 June 2022. All are welcome at no cost.
  2. The Italian Constitutional Court has opened 4 positions for legal experts in foreign law (English, French, German, Spanish and Portuguese) and 1 position for an expert in communication (English). All info here. Deadline for applications is 20 May 2022
  3. The Australian National University (ANU) accepts book proposals for the Early Career Researcher (ECR) Prize in Legal Scholarship. The DL for proposal submission is midnight (AET) 9 December 2022.
  4. The University of British Columbia, Peter A. Allard School of Law 2022-2023 Global South Visiting Scholar In-Residence Program calls for applications. The DL is 30 June 2022.
  5. The Economic and Labour Relations Review Journal issued a call for papers for the special issue December 2023 on The political economy and labour relations of Sport Mega-Events. Abstracts and symposium drafts are due by 31 July 2022.
  6. The World Trade Congress on Gender, to be held on 5-7 December at the WTO in Geneva under the theme “Gender Equality for Sustainable Trade and Recovery”, invites the submission of detailed abstract defining research questions, methodological approach and outcomes by 1 July 2022 to trade-gender@wto.org with the subject “WTCG — Call for Papers”.
  7. The Institute for European Studies, Malta, issued a call for papers for the “20 years of EU Membership” Conference. Please send an abstract (maximum 300 words) and a short bio-note listing your qualifications and professional affiliation by 23 September 2022. Papers should be between 4,000 and 6,000  words long, including references and footnotes. Paper proposals and/or any additional questions should be addressed to Marta Migliorati at marta.migliorati[at]um.edu.mt.
  8. The International Islamophobia Studies Research Association (IISRA) organises a conference on States of Islamophobia (Studies) in Istanbul, Turkey, 14-16 July 2022. Applicants are encouraged to submit fully-formed panels that can address the theme conference from an academic field or an interdisciplinary framing. Abstracts are limited to 300 words and a one paragraph (100 words). Abstracts are due by 31 May 2022.
  9. The University of Bayreuth, Chair of Food Law, organises the “Innovate Food Law” writing competition and welcomes submissions of legal essays of min. 2,500 words that will explore the topic of future food law and policy. The winner will be awarded with the prize of 700 euro. The deadline is July 15, 2022. 
  10. WJP, the Wright Center, and Bright Line Watch seek proposals for works-in-process to be presented at a workshop on 11-13 November 2022, at Dartmouth College in Hanover, NH. Papers related to the trajectory of the rule of law in the United States and its relationship with ongoing concerns about the risks to democracy in the United States and around the world are welcomed; studies of courts, prosecutors and other legal institutions, access to justice, racial disparities in the legal system, electoral integrity, media coverage of legal issues, academic integrity and trust in institutions generally. We encourage papers using multidisciplinary and novel research methods, including but not limited to computational methods, corpus linguistics, synthetic cases, and other techniques. Interested scholars should submit an abstract of up to 500 words with a CV no later than 1 June 2022, to researchconsortium@worldjusticeproject.org
  11. IE University Law School, with the support of the Erasmus+ Programme of the European Union, launched the “Lawtomation” Jean Monnet Centre of Excellence and called for participants to submit an abstract of no more than 500 words via the dedicated online form. Abstracts must be written in English. The deadline for submission is 20 June 2022.
  12. The University of Zurich will host a Conference on “Contested Equality: International and Comparative Legal Perspectives” on October 20-21, 2022. The deadline for abstract submission is 20 May 2022.

Elsewhere Online

  1. M. Jannani, The Illegality of the Khargone Demolitions, Indian Constitutional Law and Philosophy
  2. Toni Mauro, The Marble Palace Blog: At Canada’s Supreme Court, There Are No Leaks,
  3. Eliav Lieblich, Wrong to the Core the Supreme Court of Israel’s Ruling on Masafer Yatta, Verfassungsblog
  4. Lorenzo Gradoni, Is the dispute between Germany and Italy over state immunity coming to an end (Despite being back at the ICJ)?, EJIL Talk
  5. Irina Criveț, ‘Moldova, Mic-drop!’: A Long Awaited Ratification of the Istanbul Convention, IACL-AIDC Blog
  6. Oskar Sherry, LGBT Rights as administrative law? Tang Seng Kee v Attorney-General, Oxford Human Rights Hub
  7. Martino Comelli, Christian Democracy is Culpable for Europe’s Democratic Backsliding, The Loop ECPR’s Political Science Blog
  8. Asanga Welikala, Economic Crisis and Constitutional Reform in Sri Lanka, IACL-AIDC Blog
  9. Gábor Mészáros, Never Ending Exception, Verfassungsblog
  10. Cem Tecimer, De-AKPification, How to Treat AKP-Operatives in a Post-AKP Turkey, Verfassungsblog
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Published on May 16, 2022
Author:          Filed under: Developments
 

Informal Co-Optation Semi-Presidentialism: Bolsonaro´s Most Successful Autocratizing Strategy

Juliano Zaiden Benvindo, Associate Professor at the University of Brasília and CAPES-Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law

A significant transformation is taking place in Brazil’s system of government. The country has a long history of discussion of whether its political system should maintain its presidential form or whether parliamentarianism – and, most recently, semi-presidentialism – would function as a more reasonable and effective system for governance. The debate has been stormy at all levels, but the truth is that radical changes have already been put into practice within the presidential system, to the point that it looks like a distinct one. It is no longer “coalition presidentialism”, as the literature has dubbed it,[1] but a sort of informal co-optation semi-presidentialism that exacerbates the costs of political support. Such an informal system raises the stakes of cohabitation between the President and the Speaker of the House (and, to a lesser extent, the President of the Senate) if no incentives for blatant pork-barreling (and corruption) are on the table. For Bolsonaro, it has become his most successful autocratizing strategy, though a very unstable one. According to current polling data, the odds that he may lose the presidential elections in October are high. In such circumstances, what may this legacy mean for Brazilian democracy? Is there any positive outcome of such a transformation? And what may comparative politics and democratic studies learn from such a shift in Brazil’s presidentialism?

Comparative constitutional law normally focuses on the traditional pathway to autocratization, such as court-packings, parliamentary co-optation, changes in electoral rules, extension or elimination of term limits,[2] governmental assaults on civil liberties, attacks on the media[3] and opponents, among others.[4] The abuse of the constitution for unconstitutional goals[5] is also an important feature of the so-called “third wave of autocratization,”[6] even though the metaphor of waves might be misleading.[7] Those movements are normally addressed as strategies of would-be autocrats or autocrats to hold their grip on power. Yet, a compelling debate lies in the paradoxical legacies of such transformations. For instance, Alexander Liman and Vladimir Kozlov argue that compliant political activism that helps strengthen authoritarian rule can become self-reinforcing and non-compliant once the regime is over.[8] David Landau sustains that populist constitutions may provide mechanisms that, while “[creating] appropriate incentives for political leaders”, may also “facilitate popular solutions to crises and thus play a larger role than courts in defending against the democratic threat posed by populist leaders.”[9] In all such examples, it looks like that tools that were first aimed at engendering coordination by political leaders for authoritarian goals could become tools for the citizens themselves to react “in concert against political leaders who transgress constitutional rules.”[10] What may first work as an autocratizing strategy may, paradoxically, provide some positive outcomes to make democracy again “the only game in town.”[11]

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Published on May 12, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


–Silvio Roberto Vinceti, Adjunct Lecturer, University of Modena and Reggio Emilia


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 draft of the US Supreme Court majority decision for the upcoming Dobbs case has been leaked. Albeit not final, the draft suggests the overturning of Roe v. Wade and the return of the issue of abortion to state legislatures.
  2. Describing it as “a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here” the Chief Justice of the US Supreme Court launched an official investigation into the leaking of the Dobbs draft opinion.
  3. In light of increasing lawsuits over Nazi reparations Germany took Italy before the International Court of Justice for failing to comply with the Court’s 2012 ruling
  4. Germany Federal Constitutional Court struck down several provisions of the “Bavarian Constitutional Protection Law” that provides for penetrating surveillance powers
  5. The Armenian Constitutional Court upheld the validity of the National Assembly Speaker election
  6. The Romanian Parliament appointed two judges to the Constitutional Court
  7. Romania’s Constitutional Court voided a statute abridging lawmakers’“special pension”
  8. Nine judges were appointed to the Court of Justice of the European Union
  9. The European Court of Human Rights asked the Polish government to provide its observations on 20 new applications concerning the status of judicial independence in the country
  10. The Supreme Court of Canada announced the review of the Court of appeal decision that upheld the residency requirement for elected council members of the Vuntut Gwitchin First Nation

In the News

  1. The US President described the US Supreme Court draft for the Dobbs case as a “radical decision” marking a “fundamental shift in American jurisprudence” while threatening “other basic rights”
  2. California and Ohio political leaders committed to enshrining abortion rights in state constitutions
  3. For the first time since its adoption, the European Commission triggered the rule-of-law conditionality mechanism against Hungary
  4. Two associations of French judges wrote a letter to the European Commission President questioning the EU Justice Commissioner’s impartiality in evaluating alleged threats to judicial independence in France
  5. Italy’s most representative association of judges and prosecutors deliberated a one-day strike against the ongoing reform of the judiciary
  6. In the wake of much-debated resignation of UK judges from the Court of Final Appeal a new system of judicial performance evaluation is introduced in Hong Kong
  7. Hungary’s Minister submitted a constitutional bill that would extend the state of emergency mechanism to cases of “armed conflict, war or humanitarian catastrophe in a neighboring country”
  8. President of Kazakh proposed a referendum on the decentralizing constitutional reform that would, inter alia, strip his predecessor of immunity privileges

New Scholarship

  1. Antonia Baraggia and Matteo Bonelli, Linking Money to Values: The New Rule of Law Conditionality Regulation and Its Constitutional Challenges (2022) (arguing that the debate and modifications to the rule of law conditionality regulation improved the conditionality mechanism and highlighting foreseeable legal issues)
  2. Richard Albert, Juliano Benvindo, Milton Jimenez and Cristiãn Villalonga Torrijo, Constitutional Dismemberment in Latin America, 52 Revista Derecho del Estado 97 (2022) (drawing from Latin American jurisdictions to illustrate the phenomenon of constitutional dismemberment and to explore its implications for constitutional democracy)
  3. Ramona Coman The Politics of the Rule of Law in the EU Polity Actors, Tools and Challenges (2022) (analyzing rule of law debate in the European Union and the legal tools for its enforcement)
  4. Cecilia Rizcallah and Victor Davio The Requirement that Tribunals be Established by Law: A Valuable Principle Safeguarding the Rule of Law and the Separation of Powers in a Context of Trust (2022) (discussing the established-by-law requirement as a legal principle advancing both judicial independence and accountability)
  5. Øyvind Stiansen (Non)renewable Terms and Judicial Independence in the European Court of Human Rights (2022) (evaluating the removal of reappointment opportunity for ECtHR judges and arguing that it fosters independence from nominating states)
  6. Steven Smith The Constitution, the Leviathan, and the Common Good (forthcoming 2022) (criticizing common good constitutionalism in light of classical legal tradition, the American Constitution, and contemporary constitutional theory)
  7. Raymond Byrne Judicial Conduct in Ireland: A Framework Fit for Purpose? The Bangalore Principles And The Judicial Council Act 2019 (2022) (discussing the role of Bangalore Principles and their influence on the Judicial Council Act of 2019)
  8. Brian M. Barry Judicial Impartiality in the Judicial Council Act 2019: Challenges and Opportunities (2022) (discussing the notion of judicial impartiality and its enhancement within the framework of the Irish Judicial Council)
  9. Marta Cartabia and Nicola Lupo The Constitution of Italy A Contextual Analysis (2022) (providing a comprehensive introduction to the Italian constitutional system and its main institutions)
  10. Evelyn Villarreal and Bruce M. Wilson (eds.) El agua como derecho humano: Reconocimientos y disputas en Costa Rica (2022) (discussing access to water and sanitation as a human right in the context of Costa Rica legal system)

Calls for Papers and Announcements

  1. The ICON-S CEE Chapter organizes a roundtable discussion of Andras Sajo’s new book titled “Ruling by Cheating: Governance in Illiberal Democracy.” The roundtable takes place on Tuesday, May 10th, 15:00-16:30 CET.
  2. WZB Berlin and the Martin-Luther-University Halle-Wittenberg organize a Workshop and a Conference titled “Solange 50th Anniversary Conference: Constitutionalism beyond the state and the role of domestic constitutional courts” to be held in Berlin on January 12-13, 2023 (Workshop), and on May 30-31, 2024 (Conference). The deadline for submitting abstracts is June 12, 2022.
  3. The Nevada Law Journal announced a call for papers for its symposium issue titled “Dark Necessity? The Supreme Court’s Shadow Docket.” The abstract deadline is May 16, 2022.
  4. Class Crits calls for papers for its XIII Conference on “Unlocking Inequality: Revisiting the Intersection of Race and Class” to be held on October 21-22, 2022, at the Thurgood Marshall School of Law (Houston). The submission deadline is June 30, 2022.
  5. The International Race and Rights Lab calls for abstracts for a Workshop on Race and International Relations to be held at University of Notre Dame’s Keough School of Global Affairs on March 31, 2023. The deadline is December 20, 2022.
  6. EULab calls for application to the Summer School on Labour Migration in the European Union to be held in Naples from June 27 to July 7, 2022: the deadline is May 20, 2022. Within the activities of Summer School, EULab also calls for insights for a one-day Young Scholars Workshop to be held in hybrid form: the submission deadline is May 20, 2022.
  7. The British Academy with Cara (the Council for At-Risk Academics) established a “Researchers at Risk Fellowships Programme” addressed to researchers who either are still in Ukraine, or left the country in the last five years. The next deadline for applications will be 5:00pm (BST) on Wednesday 1 June 2022. Subsequent deadlines will be Wednesday 29 June and Wednesday 20 July.
  8. On May 12-13, 2022, a Global Conference on Parliamentary Studies will be hosted in hybrid form (Budapest and online) at the Department of Constitutional and Comparative Public Law of Ludovika – University of Public Service.
  9. Following a Strasbourg Observers symposium on the publication of three books, an online panel on “Minimalism vs. Maximalism? Challenges and Future Directions in the Interpretation of the European Convention on Human Rights” will take place on June 8, 2022, at 4 pm (CET), featuring Professor Eva Brems and authors Dr Corina Heri, Dr Jens T. Theilen and Dr Natasa Mavronicola. Registration is available here.

Elsewhere Online

  1. Tom Goldstein How the leak might have happened Scotusblog
  2. Josh Blackman The Final Epicycle of Roe v. Wade Volokh
  3. Mark Movsesian Why the Dobbs Leak Is Dangerous First Things
  4. Paul Horwitz Leaks and a Look Backward Prawfsblawg
  5. Michael C. Dorf Overruling Roe is Just the Beginning Verdict
  6. Colin Harvey Next Chapter, in a Larger Story: The Assembly Election in Northern Ireland Raises Questions About its Constitutional Future Verfassungsblog
  7. John Garry The constitutional question in Ireland and Northern Ireland UKICE
  8. Thomas Perroud A Male, White and Conservative Constitutional Judge: The Composition of the French Constitutional Council After the New Appointments Verfassungsblog
  9. David Kosar and Mathieu Leloup Saying Less is Sometimes More (even in Rule-of-Law Cases): Grzęda v Poland EU Law Live
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Published on May 9, 2022
Author:          Filed under: Developments