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Blog of the International Journal of Constitutional Law

Mark Tushnet Prize in Comparative Law–Call for Nominations

The AALS Section on Comparative Law is pleased to announce the second year of the “Mark Tushnet Prize” to recognize scholarly excellence in any subject of comparative law by an untenured scholar at an AALS Member School.

The Prize will be given to the author(s) of a scholarly article judged to have made an important contribution in the field of comparative law. This article must have been published in an academic journal between July 1, 2019 and June 30, 2020.

The Prize was awarded for the first time at the 2020 AALS Annual Meeting. It will be awarded every year thereafter at the January AALS Annual Meeting. All untenured scholars—including but not limited to tenure-track professors, visiting assistant professors, lecturers, academic fellows, doctoral candidates—are eligible.

Nominations for the 2021 Prize should be sent by email to Kristi Longtin (kristi.longtin@drake.edu) by no later than 12:00pm Central Time (U.S.) on August 3d, 2020. Nominations should include the full name, institutional affiliation, and contact information for the nominated scholar, in addition to a PDF version of the published article to be considered for the Prize. Self-nominations are welcomed.

For all questions, please contact Professor Mark Kende (mark.kende@drake.edu), Chair of the AALS Section on Comparative Law.

Prize Committee

  • Mark Kende (Drake, Chair)
  • Richard Albert (Texas)
  • Penelope Andrews (New York Law School)

About Mark Tushnet

Mark Tushnet, a former president of the Association of American Law Schools, is the William Nelson Cromwell Professor of Law at Harvard Law School. A former law clerk to Justice Thurgood Marshall, Tushnet is an authoritative voice in constitutional law and theory. His scholarship spans all areas of public law, including comparative constitutional law, a field in which he has co-authored a leading casebook. A respected teacher, a devoted mentor, and an influential scholar, he retired from the Harvard faculty in June 2020.

About the AALS

The Association of American Law Schools (AALS) is a 501(c)(3) nonprofit association of 179 law schools. Its members enroll most of the nation’s law students and produce the majority of the country’s lawyers and judges, as well as many of its lawmakers. The mission of AALS is to uphold and advance excellence in legal education. In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities–local, national, and international. Founded in 1900, AALS also serves as the learned society for the more than 9,000 law faculty at its member schools, and provides them with extensive professional development opportunities, including the AALS Annual Meeting which draws thousands of professors, deans and administrators.

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Published on July 24, 2020
Author:          Filed under: Developments
 

Announcement: ICON-S Forum on Gender and Public Law, and Webinar on the Gendered Impact of the COVID-19 Pandemic on Public Law Scholarship, July 22

The Gendered Impact of the COVID-19 Pandemic: Public Law Scholarship, Perspectives and Values – Webinar

MEETING DESCRIPTION:
COVID-19 has inflicted serious damage on the health, social and economic well-being of citizens worldwide. But that damage has not been evenly distributed: it has affected some countries and regions far more than others, and has had distinctly racialized and gendered impacts. In this webinar, we focus in particular on the gendered impacts of the pandemic – on its impact on the capacity to combine care and work, and the resulting gendered impacts in public law scholarship. At the same time, we consider the ways in which the pandemic has created new ways of thinking about work, especially flexible work, which open up the possibilities of a new more gender-equal society, economy and academy. The webinar will feature a panel discussion led by Grainne de Burca and Rosalind Dixon, and which draws on the diverse perspectives of leading female-identifying members of the Society, as well as experts on gender and economic policy, including Michaela Hailbronner, Ruth Rubio Marin, Marcela Prieto Rudolphy, Iyiola Solanke, Betsey Stevenson and Julie Suk.

TIME:
Jul 22, 2020 09:00 Eastern Time (US and Canada)

ICON Forum on Gender and Public Law – Meeting

MEETING DESCRIPTION:
In issue 18:2 of ICON, the journal invited a group of scholars to share their reflections on gender and public law at a time of backlash against gender equality movements in various parts of the world. We are delighted to have Professors Christopher McCrudden, Stefano Osella, Ruth Rubio Marin and Anna Śledzińska-Simon, join Gráinne de Búrca, Michaela Hailbronner and Marcela Prieto Rudolphy for this roundtable discussion on gender and public law.

TIME:
Jul 22, 2020 10:30 Eastern Time (US and Canada)

For more details on these and other upcoming events, and to register, see here.

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Published on July 20, 2020
Author:          Filed under: Editorials
 

What’s New in Public Law

—Chiara Graziani, Research Fellow in Constitutional Law, University of Genoa (Italy) and Academic Fellow, Bocconi University (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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The European Court of Justice invalidated Decision 2016/1250 on the adequacy of the protection provided by the EU-US Privacy Shield.
  2. The European Court of Human Rights ruled an asylum seeker’s case against a return to Afghanistan inadmissible.
  3. The German Federal Constitutional Court upheld a complaint against discrimination based on parentage in the context of restoring citizenship.
  4. The Ukraine Constitutional Court declared unconstitutional a criminal code provision concerning judges’ liability.
  5. The Supreme Court of the United Kingdom ruled on the compatibility of police covert operations aimed at hunting child molesters with the right to private life and correspondence.

In the News

  1. The President of Mali announced the dissolution of the Constitutional Court.
  2. The U.S. Homeland Security Department announced it would extend restrictions on non-essential travel at U.S. land borders with Canada and Mexico through August 20, 2020.
  3. A Canadian federal court recommended an external review of the Canadian Security Intelligence Service.
  4. Two members of the Catalan independence movement whose mobile phones were targeted with spyware announced they will take legal action against the former head of the Spanish national intelligence center.
  5. The US President, Donald Trump, will further challenge the Manhattan district attorney’s subpoena for his financial records after the Supreme Court decides on his financial records.

New Scholarship

  1. K. Ewing, J. Mahoney, A. Moretta, MI5, the Cold War, and the Rule of Law (2020) (analyzing the evolution of MI5’s mandate during the Cold War, its surveillance targets, and what it did with the information it gathered)
  2. T. Marzal, From World Actor to Local Community: Territoriality and the Scope of Application of EU Law, in L. Azoulai (ed.), European Union Law and Forms of Life. Madness or Malaise? (2020) (offering a new interpretation of the territoriality of EU law)
  3. C.M. Flood, V. MacDonnell, J. Philpott, S. Thériault, S. Venkatapuram (eds.), Vulnerable: The Law, Policy and Ethics of COVID-19 (2020) (addressing vulnerabilities and interconnectedness made visible by the pandemic and its consequences, along with the legal, ethical and policy responses)
  4. D. Pozen, K.L. Scheppele, Executive Underreach, in Pandemics and Otherwise, American Journal of International Law (forthcoming 2020) (examining executive branches’ role in times of emergency)
  5. M.A. Restrepo Medina, Interculturalidad, protección de la naturaleza y construcción de paz (2020) (addressing the relationship between the need to protect nature and interculturality)
  6. A. Vedaschi, L. Cuocolo (eds.), L’emergenza sanitaria nel diritto comparato: il caso del Covid-19, DPCE Online (2020) (providing a comparative study of legal reactions to tackle Covid-19 and discussing major public law issues arising the refrom)

Calls for Papers and Announcements

  1. The Human Rights Center of the University of Minnesota Law School will host the webinar “The Use of Biometric Data to Identify Terrorists: Best Practice or Risky Business?” on July 22, 2020.
  2. Notre Dame Law School’s Program on IP & Technology Law and the AI Society Project at the Università di Padova will hold a virtual event on “The Role of Law, Norms, and Technology in Contact Tracing”, to be live-streamed on the AI Society website on July 22, 2020.
  3. The British Institute of International and Comparative Law will host the webinar “Artificial Intelligence, Big Data and the Law: Reimagining the New Roots of Environmental Law” on July 23-24, 2020.
  4. The Internet and Computer Law Section of the American Association of Law Schools (AALS) invites paper submission for its session on “Deep Surveillance” to be held during the AALS 2021 Annual Meeting. Submissions are due by August 14, 2020.
  5. Notre Dame Law School’s Program on IP & Technology Law announces a virtual event co-hosted with Twitter on “The Future of Privacy from Ireland to America”, to be held on August 27, 2020.
  6. The Socio-Legal Review welcomes the submission of articles for its seventeenth volume as well as for the Socio-Legal Review Forum. The deadline is September 15, 2020.
  7. The International Review of Human Rights Law invites submissions for its forthcoming issue. The deadline to send manuscripts is September 29, 2020.
  8. The National Law School of India Review invites contributions for its forthcoming issue. The deadline for submissions is October 30, 2020.
  9. A new research group on “Public Law Responses to Public Health Emergencies” was established within the International Association of Constitutional Law.

Elsewhere Online

  1. B. Ackerman, O Brasil precisa de nova Constituição, Correio Braziliense
  2. R. Booth, A dark cloud or the promise of rain: Section 25 and the fate of land restitution in South Africa, AfricLaw
  3. D.R. Cameron, After a busy week in the EU, all eyes turn to Friday’s European Council meeting, Yale MacMillan Center
  4. D. Sarmiento, A conversation with Professor Wojciech Sadurski on the Rule of Law crisis in Poland, EU Law Live
  5. A. Jakab, Moral Dilemmas of Teaching Constitutional Law in an Autocratizing Country, Verfassungsblog
  6. Y. Joshi, Does Transitional Justice Belong in the United States?, Just Security
  7. M. Kende and D. Lithwick, The Supreme Court Still Refuses to Acknowledge Systemic Racism, Slate
  8. J.R. Murphy, The Palace Letters Case: Constitutional Conventions and the Confidentiality of Royal Correspondence in the Commonwealth Realms, UKCLA Blog
  9. E. M. Rashwan, Egypt Under COVID-19: Normalizing Emergency, IACL-AIDC Blog
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Published on July 20, 2020
Author:          Filed under: Developments
 

Brazil’s Constitutional Dilemma in Comparative Perspective: Do Chile and Spain Cast Light on the Bolsonaro Crisis?

Introductory Note: This is an expanded version of an essay originally published in Portuguese by the Correio Braziliense on Monday, July 13, 2020. Here is an English translation.

The present essay provides a comparative perspective on Brazil’s current crisis, and provides a global audience with a more detailed account of its constitutional development over the past forty years.

—Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

Brazil needs a new Constitution. Increasing numbers of Brazilians are losing faith in the system established in 1989. The political corruption revealed in the Car Wash scandal, culminating in Bolsonaro’s dictatorial and incompetent response to the Coronavirus crisis, have led ordinary citizens to fear that Brazilian democracy has no future.

The best way to respond to escalating political alienation is to convene a new Constituent Assembly in 2023. Once elected, the delegates should reconsider key decisions by the Assembly of 1988, and see how they have, over the decades, generated the current crisis of public confidence.

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Published on July 16, 2020
Author:          Filed under: Analysis
 
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Too Poor to Travel: The Right to Inclusive Mobility Beyond the Lockdown

—Sofia Ranchordas, University of Groningen

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

As governments throughout the world are devising strategies to ensure that their citizens can safely return to their workplaces after the initial 2020 public health lockdowns, transportation experts are debating whether mobility will ever be the same. The spread of COVID-19 and the partial or full lockdowns that were established as a response to it, showed that many activities can be held online. Nevertheless, by now, most of us has come to the conclusion that remote meetings do not replace most physical activities. Academics are certainly wondering when they will be able to present their new papers at an academic conference or teach a class before an audience of interested students without facial coverings. Nevertheless, we academics can (for better or worse) work remotely. The same cannot be said about millions of workers who need to be physically present and use public transit on a daily basis. When public transit shuts down, does not guarantee social distancing or regular cleaning, or prohibitions are established on who can travel during peak hours and who cannot, low-income householders are affected.

This column draws attention to the problem of transport poverty and the need for more legal research on inclusive mobility. I do not argue that we should add another fundamental right to the longstanding proliferation of fundamental rights. Rather, I contend that inclusive mobility is grounded in the right to equal treatment, particularly in the case of physical or psychological disabilities. This column draws on a recent paper and a podcast on inclusive mobility where I explain the problem of transport poverty  and how it sets limits on the exercise of multiple socio-economic rights.

Transport Poverty and Inclusive Mobility

Equal access to safe mobility is an issue that goes beyond the current responses to the spread of COVID-19 and that it is often overlooked. Policymakers focus on designing efficient mobility solutions that ensure that commuters get faster from A to B, using the most sustainable means of transport. In the COVID-19 era, this will mean that solutions will have to be adopted to ensure that fewer commuters crowd public transit during peak hours. In the Netherlands, the government has for example asked universities to change the schedule of physical lectures to ensure that students would not use public transportation during peak hours. The spread of COVID-19 may be pushing for other (and much more) innovative solutions to ‘shave the peak’ of public transportation demand. Nevertheless, it is also in this context and along the lines of these types of mobility policies that many citizens may feel that they are being left behind.

In Western countries about 20% of the population does not have access to adequate mobility options. They are too poor to travel. For these individuals, the price of public transit or fuel represents a very significant part of their household budget. The protests initiated two years ago by the gilets jaunes in France against fuel prices and in 2019, the violent student demonstrations in Chile against the increase in the price of subway prices, have shown the societal dimension of the problem. Existing scholarship has thus far focused on the need to improve the connectivity of rural communities and to help rural populations overcome social exclusion and isolation. However, transport poverty has become an urban problem due to the explosive expansion of cities in the last decades (urban sprawl), the high prices of housing in neighborhoods near employment centers, and the growing prospect of a new financial crisis.

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Published on July 15, 2020
Author:          Filed under: Analysis
 
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What’s New in Public Law

–Susan Achury, Visiting Lecturer, Texas Christian 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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Colombia ruled unconstitutional virtual sessions of Congress.
  2. The Court of Appeal of Singapore ruled that there is a constitutional right to vote, but that this right had not been violated by a decision to hold a general election during the COVID-19 crisis.
  3. The US Supreme Court ruled that the eastern half of Oklahoma can be considered Native American territory. Oklahoma must honor a treaty from nearly two centuries ago, setting aside this land for Native peoples.
  4. The US Supreme Court ruled that the President is not immune from a New York prosecutor’s subpoena for his tax return.
  5. The US Supreme Court ruled limiting the scope of Congress’ power to subpoena information from the President.
  6. The US Supreme Court ruled that Catholic schools cannot be sued for employment discrimination.
  7. The Constitutional Court of Spain ruled unconstitutional the regulation on instalment payments of corporate income tax.
  8. In Latvia, the Constitutional Court ruled that benefits for invalids and pensioners are inappropriate.

In the News

  1. Harvard and MIT file lawsuit to stop Trump policy prohibiting international students from staying in the US if schools go online.
  2. Guatemala’s Constitutional Court is under attack. In Guatemala, Congress and Supreme Court launched dubious proceedings to remove and potentially prosecute four judges from the Constitutional Court for alleged abuse of authority.
  3. Mali’s President promised to reform the Constitutional Court after a decision over the disputed legislative elections.  
  4. Movement for Black Lives introduces proposed BREATHE Act aiming to divert federal resources from jails and police, invest in other methods of community safety, allot funds to rebuilding communities, and hold law enforcement officials accountable for civil rights violations.
  5. Trump administration had officially moved to formally withdraw the US from the World Health Organization (WHO).

New Scholarship

  1. Charles Ngwena, “What is Africanness?” Contesting nativism in race, culture and sexualities, (2018) (analyzing the concept of nativists to present understanding of Africa as the land of diverse identifications)
  2. Joanna Bell, The Anatomy of Administrative Law (2020) (exploring the nature of the legal structures at play in administrative adjudication)
  3. Alice J. Kang, Miki Caul Kittilson, Valerie Hoekstra, and Maria C. Escobar-Lemmon Diverse and inclusive high courts: a global and intersectional perspective, Politics, Groups, and Identities, (2020) (exploring the attempts at and successes of promoting intersectional inclusion in the context of the high courts of Canada and South Africa)
  4. Andrea Castagnola,  La Trampa de la Manipulación Judicial: Un Análisis Histórico del Control Político de la Suprema Corte Argentina, Revista Uruguaya de Ciencia Política (2020) (identifying the politicians incentives to impede the emergence of a stable and independent judiciary)
  5. David Landau, Personalism and the Trajectories of Populist Constitutions (2020) (reassessing the role of the judiciary in checking populist governments)
  6. Alan Bogg, Jacob Rowbottom, Alison L Young, The Constitution of Social Democracy: Essays in Honour of Keith Ewing (2020) (exploring the development of social democracy and democratic socialism in theory and political practice. It includes sections on the judicial protection of rights, the parliament, democracy, social justice, and the frontiers of social democracy). 
  7. Sergio Muro, Sofia Amaral-Garcia, Alejandro Chehtmana, and Nuno Garoupa, Exploring dissent in the Supreme Court of Argentina, International Review of Law and Economics (2020) (showing different types of dissent based on levels of collegial and effort related costs and how they affect the likelihood of dissent)
  8. Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (2020) (examining contemporary problems in the accommodation of religious and secular authority)

Calls for Papers and Announcements

  1. Early registration is now open for a free online seminar on Socialism and Constitutionalism hosted by the International Forum on the Future of Constitutionalism.
  2. The  National Law School of India Review, the flagship law journal of the National Law School of India University, has announced a call for paper for its forthcoming Volume 33, Issue 1. (Due October 30)
  3. Institute of Advanced Legal Studies (IALS) and Westminster Foundation for Democracy (WFD) has issued a call for papers on “Are emergency measures in response to COVID-19 a threat to democracy? Fact and Fiction.” (Due June 30).
  4. Católica Law Review has issued a call for papers on “Public Law in Times of Crisis” for its Volume V, issue 1. (Due September 30)
  5.  The Annals of Health Law and Life Sciences at Loyola University Chicago School of Law has issued a call for papers on “Post-Pandemic Impact on Healthcare Development and Delivery” for publication in our Winter 2020. (Due July 24)
  6. The South Carolina Law Review has issued a call for papers addressing the broad range of topics related to “Taxation, Finance, and Racial Justice.” (Due October 1)
  7. The Oxford Seminars in Jurisprudence has issued a call for papers on topics related to the philosophy of law. (Due August 10)
  8. The International Journal of Discrimination and the Law has issued a call for papers for a special issue entitled “COVID-19: Lessons for and from Vulnerability Theory.” (Due October 31)
  9. The Canadian Legal Education Annual Review (CLEAR), a peer-reviewed annual publication of the Canadian Association of Law Teachers (CALT), has issued a call for papers for its Volume 9. (Due August 15).
  10. The University of New Hampshire Law Review has issued a call for papers on to participate in the Symposium Rights & Responsibilities: Judicial & Legislative Responses to the Covid-19 Pandemic, to be hosted online via ZOOM October 23. (Due September 1)

Elsewhere Online

  1. Donald Bello Hutt and Andrej Kristan, The ghost of the results-oriented constitutional review, Revista Derecho del Estado, Universidad Externado de Colombia.
  2. Diana Carrera and Johanna Fröhlich, Constitutional Identity in Transition? The Case on the Human Rights of the State, IACL-IADC Blog
  3. Carlos Arturo Villagrán Sandoval, A Constitutional Telenovela: The Deepening Constitutional Crisis in Guatemala, IACL-IADC Blog
  4. Grace Iara Souza, Brazil’s indigenous peoples face a triple threat from COVID-19, the dismantling of socio-environmental policies, and international inaction, LSE blog
  5. Catherine Andrews and Ariadna Acevedo Rodrigo, Cien años de arrogancia: por qué el liberalismo ‘occidental’ no salvará a América Latina, LSE blog
  6. Marin Keršić, Voting in Times of a Pandemic: The Case of Croatia: Constitutional Conflict between the Right to Vote and the Protection of Health, Verfassungsblog
  7. Marie-Laure Basilien-Gainche, Ask the Dust, Verfassungsblog
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Published on July 13, 2020
Author:          Filed under: Developments
 

An Unconstitutional Constitutional Amendment? The Strange Case of the Postponement of the 2020 Brazilian Election

—Jairo Lima, Universidade Estadual do Norte do Paraná

Among the many impacts the COVID-19 epidemic has had on political and constitutional activity worldwide, the postponement or cancellation of elections has been one of the key issues. According to data from the Institute for Democracy and Electoral Assistance, an institution that monitors electoral processes in the world, between February 2 and July 5, 67 countries and territories decided to postpone elections that were planned at the national or subnational level.[1] In Latin America, for instance, Chile, which is facing a constituent process for a new Constitution, postponed the plebiscite that was supposed to be held on April 26 of this year.

In Brazil, municipal elections were scheduled to take place next October. However, because election campaigns necessarily involve crowding and personal contact, the Brazilian National Parliament decided on July 3 to postpone the elections until November 15, 2020 by means of a constitutional amendment (nº 107). The amendment was necessary because the dates of the elections are set by the Constitution: art. 29, II: “election of Mayor and Vice-Mayor must be held on the first Sunday of October of the year prior to the end of the term of those who must succeed”.

The major constitutional problem in the postponement of the elections by means of a constitutional amendment lies in the potential conflict with another constitutional provision that expressly prohibits changes in the electoral process without the law being passed at least within one year prior to the election date (art. 16).

Does this provision represent a substantive limit to the amending power in Brazil?

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Published on July 11, 2020
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Pandemic Rulings: Between Dialogues and Shortcuts at the Inter-American Court of Human Rights

—Melina Girardi Fachin and Bruna Nowak, Universidade Federal do Paraná

On May 26, 2020, the President of the Inter-American Court of Human Rights (IACtHR) issued the Court’s first decision concerning the COVID-19 pandemic. The resolution decided upon urgent measures regarding the already-decided Case of Vélez Loor v. Panama, and thus ordered Panama to take a range of new measures to protect immigration detainees during the pandemic. This decision raises important questions regarding the procedure of the IACtHR, which link to broader issues regarding the relationship between the Court and member states. These questions include (1) the proper scope of judicial orders by a single member of the Court (in this case, its President), and (2) the proper role of provisional measures when the Court has already decided the merits of the case that gives rise to the request. 

Originally, provisional measures aimed to assure the effectiveness of a future judicial decision. However, practice shows that provisional measures cases do not usually become a contentious dispute before the Court. This is when the protective facet of the measures is triggered, as a jurisdictional preventive guarantee that intends to stop irreparable damages.

The American Convention on Human Rights (ACHR) establishes, in its article 63.2, that “in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration”. Thus, provisional measures hold a precautionary character: they are intended to prevent more harm from being caused in the context of human rights violations. 

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Published on July 9, 2020
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As Karlsruhe and Luxembourg Feud, are Jo’burg and Arusha Growing Closer?

—Tom Gerald Daly, The University of Melbourne

2020, which has been a friend to no one, has certainly not spared international courts. Most obviously, the Federal Constitutional Court of Germany’s Weiss[1] judgment of 5 May, holding a judgment of the Court of Justice of the EU ultra vires due to poor reasoning, has shaken the primacy of EU law as the very foundation of the Union. The ultimate judicial showdown has launched (seemingly) a thousand blog posts, with commentators criticizing the German Court’s own reasoning, and issuing open letters insisting that national courts simply cannot override CJEU judgments. It has upturned a long-held view of broadly positive interaction in Europe achieved, not through formal design, but by courts engaging in ‘judicial diplomacy’ and strategy across the national/international divide to allow the overall system to function without excessive friction, despite key national courts’ longstanding refusal to acknowledge the absolute and unconditional supremacy of EU law.[2]

Other international courts have also had a tough 2020. As global attention has been consumed by the COVID-19 pandemic, the African Court on Human and Peoples’ Rights in Arusha, Tanzania, has suffered a stealthy backlash, with both Benin and Côte d’Ivoire withdrawing their declarations allowing individuals and NGOs to petition the African Court. This forms part of a wider pattern of backlash that has included Rwanda and Tanzania withdrawing their declarations in 2016 and 2019, non-compliance with key judgments, and questionable plans to merge the Court with the AU’s (as yet not established) Court of Justice to create an African Court of Justice and Human Rights, which have left the Court in a position of institutional insecurity.

However, a recent positive – and potentially quite significant – development in the relationship between national and international judiciaries in the African Union (AU) has gone largely unnoticed. On 11 June, for the first ever time the Constitutional Court of South Africa cited the African Court. In the Court’s New Nation Movement[3] ruling, holding the ban in Electoral Act 73 of 1998 on independent candidates unaffiliated to any political party standing in national and provincial elections is unconstitutional and lacking justification, Madlanga J directly cited the African Court’s first merits judgment of June 2013, Mtikila v. Tanzania,[4] which unanimously held the Tanzanian Constitution’s bar on independent candidacies incompatible with the African Charter on Human and Peoples’ Rights (‘Banjul Charter’). To say this is a positive development does not necessarily require agreement with the substance of the judgment itself (indeed, on Twitter, Tarunabh Khaitan has already voiced a negative view of the decision).

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Published on July 8, 2020
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Call for Papers — Constitutional Space for Cities

Constitutional Space for Cities

April 7th – 8th, 2021

Call for Papers

Cities are drivers of the world’s economy:  they are home for most of the world’s population and create a large percentage of its’ wealth.  Nevertheless, municipal governments struggle to invest in appropriate infrastructures and necessary services, leading to considerable gaps in affordable housing, public transit, and social services.  This conference, on “Constitutional Space for Cities” and its’ associated papers, will seek to understand and explain why … and propose paths forward for Cities in Canada.

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Published on July 7, 2020
Author:          Filed under: Developments, Uncategorized