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I·CONnect

Blog of the International Journal of Constitutional Law

I-CONnect Symposium on the Chilean Constitutional Referendum – On Morals and Politics: The Chilean Constituent Process

Rodrigo Kaufmann, Humboldt-Universität, Berlin

Constituent Process and Dignity

The reasons behind the rejection of the Chilean constitutional draft by the majority of Chileans are complex and hard to pin down. Many excellent contributions to this symposium provide interesting elements for a careful analysis. But there might still be one element that, perhaps, cuts across the entire constituent process, from its beginnings in the protests in October 2019 until the rejection of the draft on September 4, and that might help explain the outcome.

From the very start, the claims for which the constituent process served as a vehicle were coined in moral language. The early stages of the process can actually be best described as a demand for dignity, which is, in fact, the name spontaneously given to the square where every week thousands of people met to protest: plaza dignidad, or dignity square. This moral dimension is, of course, not particularly shocking in the context of contemporary constitutionalism, which has been largely influenced by “moral readings” and in which the concept of dignity has played a significant role.

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Published on October 12, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – Dignity and Identity in the Chilean Constitutional Referendum

Verónica Undurraga, Universidad Adolfo Ibáñez

The Chilean constituent process has attracted great international interest among constitutional scholars, politicians and advocates for social justice.  In 2019, the violent social outbreak had Chilean democracy on a tightrope. However, with remarkable political responsibility, the troubled party system managed to open a political way out of the crisis, by signing, in the dawn of November 15, 2019, the Agreement for Peace and the New Constitution that would initiate the constituent process.[1]  

The significance of the Agreement should not be underestimated.  It has been 32 years since the return to democracy and all this time it has been impossible to replace the 1980 Constitution.  This constitution was imposed by the dictatorship and, designed together with the binominal electoral system, to neutralize the agency of political majorities.   The Agreement opened a fragile and unprecedented opportunity for the people to express themselves on whether they wanted a new constitution.

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Published on October 12, 2022
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What’s New in Public Law


Matteo Mastracci, Digital Rights Researcher, Balkin Investigation 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. New Zealand’s supreme court has quashed the convictions of Peter Ellis, based on a substantial miscarriage of justice, who was convicted of child sexual abuse in 1993 in a highly controversial case that included allegations of large-scale ritual abuse.
  2. Russia’s Constitutional court recognised as lawful treaties signed by President Vladimir Putin to annex the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic, as well as the Kherson and Zaporizhzhia regions.
  3. The Constitutional Court of South Africa will hear the applications to appeal the decision declaring the suspension of the South African advocate, prosecutor and ombudsman Busisiwe Mkhwebane invalid next November 24.
  4. The Supreme Court of Israel overturned the Central Elections Committee rulings against the Arab nationalist Balad party and former Yamina MK Amichai Chikli, allowing them to run in the upcoming elections.
  5. The UK High Court of Justice dismissed the appeal filed by the organisation Good Law Project (GLP) which challenged the legality of the government’s lateral flow test contracts.

In the News

  1. The Bosnian state court has confirmed an indictment charging Mile Stojanovic, former commander of the Army Vehicle Squad, for participating in the illegal detention of around 150 Bosniak civilians, two of whom died, in the Rajlovac area, near Sarajevo, in 1992.
  2. The Justice Ministry of Ukraine has appealed to the competent authorities of the Republic of Austria for the extradition of former Chairman of the Constitutional Court of Ukraine Oleksandr Tupytsky to Ukraine
  3. The Turkish parliament on Wednesday elected a former deputy interior minister with the ruling Justice and Development Party (AKP) as a member of the Turkish Constitutional Court, prompting condemnation from opposition officials.
  4. Two US top judges temporarily blocked State abortion bans. In Ohio, a county judge indefinitely suspended a state law prohibiting most abortions after six weeks of pregnancy. A few hours later, an appeals court in Arizona temporarily blocked its pre-statehood law banning the procedure.
  5. UN Security Council voiced concern over the latest coup in Burkina Faso, calling on the parties in the West African country to settle their differences through dialogue.

New Scholarship

  1. Juliano Zaiden Benvindo, The Rule of Law in Brazil. The Legal Construction of Inequality (2022) (offering a critical appraisal of the functioning, evolution, and dynamics of the rule of law in Brazil where social inequality and authoritarianism still play a major role)
  2. Christoph Bezemek, Constitutionalism 2030 (2022) (critically examining the future of in the next decade)
  3. Eman Muhammad Rashwan, The ugly truth behind transitional justice in the post-revolution phase: A constitutional law and economics analysis, Global Constitutionalism, Cambridge University Press (2022) (exploring the transitional justice dilemmas after revolutions have overthrown autocratic regimes through developing a model that uses a law and economics methodology)
  4. Chris Monaghan, Accountability, Impeachment and the Constitution The Case for a Modernised Process in the United Kingdom (2022) (exploring the historical development of impeachment in the UK and comparing it with the United States and Danish experiences)
  5. Stefan Griller, Lina Papadopoulou and Roman Puff (eds.) (2022) National Constitutions and EU Integration (offering a comparative analysis of individual constitutions in the EU Member States and assessing them from the perspective of the future evolution of European integration)

Calls for Papers and Announcements

  1. Paper proposals and fully-formed panels are due by October 26 for the Global Summit on Constitutionalism at the University of Texas at Austin.
  2. ARENA Centre for European Studies at the University of Oslo (UiO) invites applications for a permanent position as a Senior Researcher or Researcher in European Studies, including political science, sociology, economics or other relevant social science fields. Interested applicants can apply by 10 November 2022.
  3. International IDEA and The Edinburgh Centre for Constitutional Law welcome Zaid Al-Ali to discuss his recent publication, “Arab Constitutionalism: The Coming Revolution.” The event will be held on Thursday 11 November. Tickets are free, but Zoom registration is mandatory.
  4. The Department of Law of the European University Institute seeks candidates for a Chair in Public International Law. Candidates should be engaged in teaching and scholarship in Public International Law and would be expected to teach and supervise broadly across this subject area. Interested applicants can apply by 14 November 2022.
  5. The Global Constitutionalism Study Group and the Institute of Comparative Law, Waseda University, organize a conference on Global Crisis and Global Legal Orders: “What should we now discuss for the Future of Global Legal Ordering?” The conference will take place on 1-2 March 2023 in a hybrid format. The deadline for abstract submissions is 30 November 2022.
  6. The Sussex Centre for Migration Research (SCMR) organizes a conference on “Migration and Global Inequalities,” to be held next October 19. To check the full program of the speakers and to register for the upcoming event, interested participants are invited to register through Eventbrite.

Elsewhere Online

  1. Asylai Akisheva, Rising violence against women and girls sparks outrage in Kyrgyz society, Global Voices
  2. Charly Derave and Hania Ouhnaoui, C.E. and Others v. France: legal recognition of intended parenthood from previous same-sex relationships (between women), Strasbourg Observers
  3. Christian Bueger and Tobias Liebetrau, Nord Stream sabotage: the dangers of ignoring subsea politics, The Loop
  4. Eleni Stamatoukou, Greek Arrest Warrant Against Journalist Whistleblower Condemned, B.I.R.D.
  5. Jens Woelk and Maja Sahadžić, Cutting the Gordian Knot in Bosnia and Herzegovina, Verfassungsblog
  6. Loqman Radpey, Remedial Peoplehood: Russia’s New Theory on Self-Determination in International Law and its Ramifications beyond Ukraine, EJIL: Talk!
  7. Madalin Necsutu, Moldova’s Ex-President Dodon Indicted for Corruption, Illicit Enrichment, Balkan Insight
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Published on October 10, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – New forms of representation and the failure of the Chilean Constitutional Convention

Maria Isabel Aninat Sahli, Universidad Adolfo Ibáñez, Chile.

How can we explain a constitutional process that began with 78% of voters in favor of drafting a new constitution in October 2020 and ended up two years later with 62% of the people opting for rejecting the proposal? What leads a country to flatly reject a proposal emanated from a democratically elected convention? These are the questions in Chile today. Probably, the failure of the Chilean constitutional process can be—and will be—explained by many different reasons. No single issue will be able to explain why the process failed. But let me offer one possibility, one that,  of course, is still very much an initial approximation, as much distance and reflection is still needed.

The Chilean constitutional process was the institutional option to channel a social outburst. Because of the context from which it had emerged, it quickly became an exercise that was seen as process that would be therapeutic in itself. Going through it would enable us to regain consensus and heal in a wide range of issues, problems and distrust. And for that, it had to distance itself from the political system. Since the outburst was read as a moment to fully restart the institutional system; this process had to be seen as an alternative to political parties, the Government and Congress.

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Published on October 8, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – The Problem of “Identity” in the Chilean Constitutional Referendum

João Vitor Cardoso, Ph.D. Candidate at the University of Chile

In October 2020’s referendum, 78% of Chileans expressed their wish to replace the country’s Constitution, through a fully elected Constitutional Convention. On September 4, 2022, the citizenry was asked by way of a referendum whether it approved the constitutional draft produced by this very constitution-making body. 62% of the electorate said no.

Many commentators have tried to identify what went wrong. According to some, the reason behind this outcome is that there was no fair campaign funding and that expenditure rules demonstrated many flaws. Others considered more carefully why perhaps a referendum is not helpful for this type of constitutional deliberation. However, an aspect that has not received sufficient attention in discussions about the referendum vote in Chile and its aftermath is “constitutional identity,” more precisely, to what extent constitution-making contributes to building constitutional identity in deeply divided societies. This is one of the most difficult issues unfolding within the Chilean case.

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Published on October 7, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – The Contradiction of Social Justice Constitutionalism

Johanna Fröhlich, Pontificia Universidad Catolica de Chile, Facultad de Derecho

Previous entries in this Symposium on the Chilean Constitutional Referendum have identified and analyzed key aspects of why the exit referendum about the new Chilean constitution was rejected. Reading these and other explanations, one can hardly deny the complexity of reasons behind the collective decision that the Chilean political community made on September 4th. The lack of representative legitimacy of the Constitutional Convention, limiting, or even abandoning the classical party structure, the broad inclusion of independent members and its consequences, the structural and ideological tilt in the composition of the Convention, the problems related to the procedural rules of the Convention, including the politicization of the exit referendum, and finally the substantial issues of the constitutional draft itself – all contributed to the outcome that we are trying to understand here.

Remaining faithful to what we, lawyers, can do so well, I would like to raise an additional problem.

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Published on October 4, 2022
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I-CONnect Symposium on the Chilean Constitutional Referendum – Making Sense of Chile’s Failed Constituent Process

Javier Couso, Universidad Diego Portales (Chile) and Utrecht University (The Netherlands)

I. Last month, Chile’s second attempt to get a new Constitution in the last few years failed again. As opposed to the first constituent initiative (led by former President Bachelet, in 2014-2018, which can be better described as having been aborted), this time the failure came after a fully developed –and highly promising— process, which only a few months ago seemed destined to succeed. Since the surprising results of the referendum a flurry of articles, opinion pieces and interviews of key actors have tried to make sense of the paradoxical final outcome of a process which started with almost 80 % of support, but ended in the solid rejection (by almost 62 % of the voters) of the text that the Constitutional Convention elaborated. In this brief piece, I provide a preliminary analysis of what went wrong with Chile’s second attempt to adopt a new Constitution, taking a perspective that, while acknowledging that there were various factors at play, singles out what I take to be the root cause behind this failed process.

II. Although a thorough understanding of the causes of Chile’s failure to get a new Constitution will take more time and data (for example, surveys exploring what led citizens of different ages and socio-economic outlook to reject the text submitted to them), it is possible to advance some hypotheses that account for what happened.

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Published on October 4, 2022
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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. The Constitutional Court of Thailand ruled that Prime Minister Prayuth Chan-ocha had not exceeded the maximum eight years allowed in office, clearing the way for his return from a five-week suspension.
  2. Judge Konstantin Aranovsky has resigned from the Constitutional Court of Russia.
  3. The Supreme Court of India ruled that all women, irrespective of their marital status, are entitled to safe and legal abortions in India.
  4. The U.S. Supreme Court will resume its work after the summer break with regards to the landmark Clean Water Act case Sackett v. EPA and a new justice — Ketanji Brown Jackson — on the bench.
  5. In a unanimous judgment, the Constitutional Court of South Africa confirmed the Pretoria High Court’s finding that the Copyright Act 1978 is unconstitutional and unfairly discriminatory to the extent that it fails to provide formats accessible for people with visual and print disabilities.

In the News

  1. The High Representative on behalf of the European Union declared thatthe EU condemns in the strongest possible terms the illegal referenda conducted in parts of the Donetsk, Kherson, Luhansk, and Zaporizhia regions of Ukraine currently and partially occupied by Russia. The EU will not recognise these “referenda” and their outcome, nor any decision taken based on this outcome.
  2. Russian President Vladimir Putin signed treaties formally annexing four Ukrainian regions – Donetsk, Kherson, Luhansk, Zaporizhia – currently occupied by Russian forces.
  3. EU Energy Ministers reached a political agreement on a regulation on an emergency intervention to address high electricity prices determined by the Russian-Ukrainian crisis.
  4. Italian voters elected all members of the two Chambers of the Parliament. The right-wing coalition led by Giorgi Meloni’s Brothers of Italy party has won a clear majority.
  5. In Myanmar a military court convicted Aung San Suu Kyi to three years in jail for violating the official secrets act. Suu Kyi has already been convicted in several other criminal trials and sentenced to more than 20 years.

New Scholarship

  1. In Myanmar a military court convicted Aung San Suu Kyi to three years in jail for violating the official secrets act. Suu Kyi has already been convicted in several other criminal trials and sentenced to more than 20 years.
  2. Koldo Casla, Magdalena Sepúlveda, Vicente Silva, Valentina Contreras (eds.), Social Rights and the Constitutional Moment. Learning from Chile and International Experiences (2022) (providing rigorous answers to fundamental questions raised by the adoption of a new constitutional bill of rights that embraces climate and social justice).
  3. Robert Hazel, Timothy Foot, The Executive Power (forthcoming 2022) (analyzing the royal prerogatives in the changing landscape of the British constitution).
  4. Ian Loveland (ed.), British and Canadian Public Law in Comparative Perspective (2021) (exploring current human rights controversies arising in UK law in the light of the way such matters have been dealt with in Canada).
  5. Cedric Jenart, Outsourcing Rulemaking Powers (2022) (analyzing the outsourcing of rulemaking powers focusing on five specific jurisdictions, the UK, United States, Belgium, France, and Germany).
  6. Rosalin Dixon, Tom Ginsburg, and Adem K. Abebe, Comparative Constitutional Law in Africa (forthcoming 2022) (this book is a crucial resource on the rich diversity of African constitutional law).

Calls for Papers and Announcements

  1. On 20-21 October 2022, on the occasion of the 50th Anniversary of the Stockholm Conference, the International Association of Constitutional Law (IACL), the Union of Turkish Bar Associations and the Association of Research on Constitutional Law & The International Center for Comparative Environmental Law will host in Ankara a conference on “Environment, Climate Change and Constitutionalism.”
  2. The School of Transnational Governance of the European University institute (EUI) has organized an online seminar that will be held on 4 October 2022 to launch the REDemocracIA Network, a forum for the debate, identification, and development of good practices for AI governance in Ibero-American countries. The main objective of this seminar is to present the new network and to make a call for expressions of interest from entities and individuals interested in joining this initiative.
  3. The Foundation Maison des Sciences de l’Homme (FMSH) and its partners offer mobility aid for postdoctoral researchers in humanities and social sciences for a period of two to three months. The deadline for application is 9 December 2022.
  4. The Foundation Maison des Sciences de l’Homme (FMSH) promotes the “Directeurs d’Études Associés” (DEA) program which is aimed at providing financial support for the mobility in France of foreign professors for a period of four to six weeks to carry out research in social sciences. Applications can be sent by 21 November 2022.

Elsewhere Online

  1. Florian Hoffmann, Constitutionalism under Bolsonaro, Verfassungsblog
  2. Michael Riegner, Globalisation on the Right. Bolsonarism and the Circulation of Illiberal Legal Ideas, Verfassungsblog.
  3. Bertil Emrah Oder, The Resistance-Deference Paradox. On strategies, survival, and partnership of the Turkish Constitutional Court, Verfassungsblog.
  4. Gábor Halmai, Coping Strategies of the Hungarian Constitutional Court since 2010, Verfassungsblog.
  5. Sangeetha Pillai, Judicial agreements and disagreements in Alexander v Minister for Home Affairs, AUSPUBLAW.
  6. Sandile Innocent Nhlengetwa, The High Court disbars a famous lawyer: Disbarment in South Africa, AfricLaw.
  7. Megha Mehta, Centering Women’s Voices – A Feminist Analysis of Religious Freedom and the Hijab Case, Indian Constitutional Law and Philosophy.
  8. Olga Hałub-Kowalczyk, What do Rivers have to do with Human Rights? A Spotlight on Recent Problems, OxHRH Blog.
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Published on October 3, 2022
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Brazil’s Most Important Election Ever: What is at Stake and What Might Happen Next?

Emílio Peluso Neder Meyer, Federal University of Minas Gerais, and Juliano Zaiden Benvindo, University of Brasília

Brazil’s next elections will be held on Sunday, October 2. More than any other political event since the country’s transition to democracy in 1985, these elections are an inflection point for Brazil’s near and long future. Depending on what comes out of the ballot box, it will define whether the country will strengthen its democracy or will move even further towards illiberalism. If Lula da Silva, who is leading the polls, wins, it will certainly be a relief: a pragmatist center-left politician and a former president (2003-2010), his government will be challenging after years of political crises, institutional disruption, and social divide, but it is a needed first step to reverse Brazil’s course against its democracy. On the other hand, if Jair Bolsonaro, the incumbent, wins, Brazil will be moving closer to that point where “he can hardly be removed by democratic means later.”[1] This diagnosis is in accordance with what several scholars have sustained as serious markers of a democracy on the verge of collapse,[2] and re-election of would-be autocrats, such as Bolsonaro, is normally depicted as a leading sign that, from that moment onwards, it is already too late to reverse democratic erosion. But what about the other variables that are less black and white in the scenario that Bolsonaro wins? And what about the challenges that Lula da Silva will face once in office?

The most likely scenario: Lula wins

Polls have shown that there is an increasing consolidation of the distance between Lula and Bolsonaro in the Brazilian presidential elections’ race. As elections approach, public figures that would supposedly support other candidates have migrated to Lula’s electorate, claiming that a strategic vote can bar Bolsonaro from attempting anything plainly unconstitutional after the voting results are released. The general feeling is that Brazil needs that Bolsonaro be defeated by a landslide victory in the first round to throw cold water in the likely scenario of Bolsonaro contesting the results, though he will most certainly do it. Still, even if the elections end in the second round, polls are still showing an even greater distance between both. Only a dramatic shift in people’s minds could thus alter such a scenario, which has been rather stable for over one year.

Therefore, it seems that Lula da Silva’s challenges are more related not to the elections themselves, but to his future government, which will take place in a significantly more problematic social and institutional environment. Inequality, the most damaging feature for Brazil’s rule of law,[3] is now higher than before, and social welfare, which had greatly improved in the new constitutional order,[4] has declined. Not only would Lula have to make the most of the recent economic growth, but he would also need to advance an agenda that goes beyond the traditional neoliberal repertoire. He was quite successful when he took office in 2003 to stabilize the economy and make it grow by strengthening some pillars of Brazil’s economic framework, while advancing a social agenda that gained momentum especially after the world’s 2008 economic crisis. Yet, the challenges are huge as labor has become more precarious, unemployment is still high after the pandemic, and inflation has escalated, with especially grave effects on the poor. The balance between fiscal constraints and social demands will be one such demanding tasks that will certainly place economic minds in several disputes.

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Published on September 30, 2022
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The Speck in the Prime Minister’s Eyes: Secrecy and Responsible Government in Australia

Renato Saeger Magalhaes Costa, The University of Queensland

Secrecy is widely believed to be the antithesis of democratic values. As a general rule, the electorate should always know what the government is doing, how decisions are made, and why a such-and-such course of action has been taken. Many institutions exist to disclose relevant information to the people and enable them to hold the executive to account. Think of institutions like Parliamentary Question Time, Freedom of Information Acts, the Ombudsman, and merits review of administrative decisions.

Nonetheless, some degree of secrecy can also uphold democratic values. Witness protection schemes, national security and anti-terrorist actions, and the confidentiality of cabinet meetings and documents shield those involved in such decision-making processes from external pressure and influence. Secrecy can help guarantee the effectiveness of government measures and secure a truth-telling process aimed at achieving the best legal and political outcomes in a particular situation. To a certain extent, secrecy can enhance democracy.

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Published on September 29, 2022
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