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Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Conference Report–Second Beetz-Laskin Conference on Canadian Constitutional Law

Noura Karazivan (Université de Montréal), Jean Leclair (Université de Montréal), and Patrick Macklem (University of Toronto)

On May 19, 2017, the Université de Montréal hosted the Second Beetz-Laskin Conference on Canadian Constitutional Law, organized by the Faculties of Law of Université de Montréal and University of Toronto. Named in honor of Jean Beetz and Bora Laskin, two distinguished Justices of the Supreme Court of Canada during the 1970s and 1980s, the Conference was co-convened by Noura Karazivan (Université de Montréal), Jean Leclair (Université de Montréal), and Patrick Macklem (University of Toronto). The Conference featured four panels and a keynote opening address by Ian Binnie, former Justice of the Supreme Court of Canada. This Report provides a brief summary of the papers presented, which will be published in a special issue of the Revue Juridique Thémis.

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Published on June 6, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

–Sandeep Suresh, LL.M in Comparative Constitutional Law (Central European University, Budapest)

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Ireland held that the ban on asylum seekers to look for employment is unconstitutional.
  2. The Constitutional Court of Hungary formed a special working group in the petition challenging the recent higher education law, also known as “Lex CEU.”
  3. The Constitutional Court of Malta upheld the right to a fair trial of two accused men who were not afforded a right of reply to the AGs request to adjourn trial by jury.
  4. The Constitutional Court of Matla found unconstitutional the VAT legislation, which doubled punitive administrative fines for late VAT payments with criminal prosecution. The legislation was in breach of the ne bis in idem rule.
  5. The Supreme Court of India held that judiciary must consider the interests of the economy and examine the impact of its verdicts on jobs.
  6. Minnesota Voters Alliance petitioned the US Supreme Court to invalidate the state law which prohibits voters to wear political apparel on an election day.
  7. The UK Supreme Court will hold an emergency hearing over sending a severely ill baby for treatment to the US. Appeal court judges have ordered hospital doctors to continue providing life-support treatment until midnight on 8 June.

In the News

  1. Venezuelan President Nicholas Maduro pledged to hold a referendum on a new constitution.
  2. In India, the State of Manipur plans to outlaw bandhs (general strikes).
  3. The Rajasthan High Court in India recommended the Central Government to declare cow as the country’s national animal.
  4. The Election Commission in India asked the Central Government to reconsider the newly introduced legal measures pertaining to electoral funding, because they reduce transparency.
  5. Justice Mandisa Maya becomes the first female President of the Supreme Court of Appeal in South Africa.
  6. Berlin court held that parents of a deceased 15-year-old, who want to know if she was being bullied, cannot see her chat history.

New Scholarship

  1. Yaniv Roznai, ‘We the People’, ‘Oui, the People’ and the Collective Body: Perceptions of Constituent Power, in Gary Jacobsohn and Miguel Schor (eds.), Comparative Constitutional Theory (2017, forthcoming) (presenting and contrasting various theoretical conceptions of constituent power, mainly of its legal or illegal nature; of its holders; and of its direct or representational manifestation)
  2. Silvia Suteu, Women and Participatory Constitution-Making, in Helen Irving (ed.), Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series (2017 forthcoming) (analysing whether and how participation in constitution-making delivers for women, with examples drawn from the Scottish independence referendum, Irish constitutional convention, and Tunisian participatory drafting experiences)
  3. Armen Mazmanyan, Constitutional Courts, in Pippa Norris and Alessandro Nai (eds.), Election Watchdogs: Transparency, Accountability, and Integrity (2017) (considering th role of constitutional court in upholding electoral integrity)
  4. Dylan Lino, Towards Indigenous–Settler Federalism, 28 Public Law Review (2017) (explaining three major contemporary proposals to constitutionally recognise the Australia’s indigenous people)
  5. Jacob Weinrib, Human Dignity and Its Critics, in Gary Jacobsohn and Miguel Schor (eds.), Comparative Constitutional Theory (2017, forthcoming) (exploring four main objections to the all-embracing role played by human dignity in human rights law)
  6. Maurizio Arcari and Stefania Ninatti, Narratives of Constitutionalization in the European Union Court of Justice and in the European Court of Human Rights’ Case Law, 11 Vienna Journal on International Constitutional Law (2017) (explaining key elements of the constitutionalization process in Europe as developed by judges of the European courts in Luxembourg and Strasbourg)
  7. Manoj Mate, Judicial Supremacy in Comparative Constitutional Law, 92 Tulane Law Review (2017 forthcoming) (challenging the idea of judicial supremacy in a comparative analysis of institutional roles asserted by courts in India, Germany, Turkey, Colombia, and South Africa)

Calls for Papers and Announcements

  1. The Indonesian Constitutional Court invites submission for the International Symposium (ICCIS) on “Constitutional Courts, Ideology and Democracy In Plural Society.” The deadline for submissions is July 10, 2017.
  2. Melbourne Law School invites submissions for the 10th Melbourne Doctoral Forum on Legal Theory on “Time in Law – Law in Time” to be held on December 7-8, 2017. Interested participants must submit their paper abstracts and a short biography to law-mdflt@unimelb.edu.au by June 11, 2017.
  3. Melbourne Law School invites submissions for the 3rd Biennial Public Law Conference on “The Frontiers of Public Law” to be held on July 11-13, 2018. The abstract deadline is August 25, 2017.
  4. The Britain and Ireland chapter of the International Society of Public Law invites paper and panel proposals for its inaugural conference on “Constitutional Relations after Brexit,” to be held on September 4-5, 2017. The deadline for proposals is June 30, 2017.
  5. Vienna Journal on International Constitutional Law published its latest issue (Volume 11:1, May 2017).
  6. The European Public Law Organization (EPLO) invites applications for the 5th edition of the Global Law & Governance (GLG) Summer School to be held from July 24-28, 2017. The deadline for applications is June 30, 2017.
  7. The University of Otago invites submissions for the 2017 Law and Society Association of Australia and New Zealand Conference, to be held on December 6-9, 2017. The deadline for abstracts is July 14, 2017.
  8. Paper proposals are invited for an international and interdisciplinary symposium on “The Use of Law by Social Movements and Civil Society,” scheduled for March 22-23, 2018, in Brussels. More information is available here.

Elsewhere Online

  1. Aravind Datar, Illegal and Senseless, The Indian Express
  2. Jeydev C.S., Judicial Review and Proportionality of Punishment, Indian Constitutional Law and Philosophy
  3. Robert Barnes, Court says essentially that Trump is not to be believed. Will Supreme Court conclude the same?, The Washington Post
  4. Noah Feldman, The Key Word for Travel Ban Is ‘Animus,’ Bloomberg View
  5. Peter van Elsuwege, Ukraine’s Ban on Russian Social Media: On The Edge Between National Security and Freedom of Expression, Verfassungsblog
  6. Tomasz Tadeusz Koncewicz, On the Separation of Powers and Judicial Self-Defence at times of unconstitutional capture, Verfassungsblog
  7. Alvaro Sanabria, Post-Truth vs Law in Colombia: An Unstoppable Force and an Immoveable Object?, OxHRH
  8. George Williams, The ongoing legacy of the Mabo decision, The Sydnes Morning Herald
  9. Sangeetha Pillai, Plaintiff M96A and the elusive limits of immigration detention, AUSPUBLAW
  10. Jeff Kingston, Asia lags Taiwan in accepting LGBTQ equality, The Japan Times
  11. Harold Hongju Koh, Dena Adler, Joanna Dafoe, Peter Posada, Conor Dwyer Reynolds and Eugene Rusyn, Trump’s So-Called Withdrawal from Paris: Far From Over, Just Security
  12. Mark Tushnet, “Working the Refs” and the Supreme Court — A History?, Balkinization
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Published on June 5, 2017
Author:          Filed under: Developments
 

A Secular Theocratic Constitutional Court? (I-CONnect Column)

Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

35 year old Shayara Bano, a mother of three teenagers, who had been married for 15 years, was unilaterally divorced by her husband Rizwan when she was visiting her parents in April 2015. She has not been allowed to see her children since that time. The only evidence of the divorce was the note that she received from her husband. Shayara’s was hardly the happy marriage, forced to have multiple abortions, beaten routinely, sequestered from her sister who lived close by and always threatened with divorce. She is one among many petitioners in a court case that has captured India’s political, constitutional and social imagination – the constitutional challenge of triple talaq.  The practice of ‘triple talaq’ is the unilateral ability of a Muslim man to divorce his wife by thrice uttering the words ‘talaq’ (or divorce), or by sending it as a message even by whatsapp or email or on facebook or through a letter. Social media apparently renders regressive cultural practices, even easier to perform!

Fascinatingly enough, Shayara’s own petition joins a case that a smaller bench of two judges of India’s Supreme Court had initiated suo-motu, and asked that it be heard by a larger constitutional bench of five judges. Therefore, the Supreme Court solicited petitions, and heard arguments over a few days of its summer vacation. Triple Talaq has even become an electoral issue for India’s ruling Hindu Nationalist Bharatiya Janata Party (BJP), making it clear that religion is as political as politics itself.

All constitutional litigation is complex, but in India when faith confronts the constitution, it’s even more so- for judges trained in secular law must reimagine themselves as theocratic experts. Why? The court created this problem for itself. India’s Supreme Court has long adopted the jurisprudential position that a practice that is an ‘essential part of a religion’ is presumed to be constitutional – whether in fact it violates constitutional values such as equality, dignity, fraternity, expression and life, is a secondary inquiry, if at all. This is especially significant in a post-colonial constitutional democracy that retained the system of ‘personal laws’ – where marriage, divorce, inheritance and succession are governed by religious law. Such ‘religious’ law is a codified or uncodified version of a certain interpretation of religious traditions, usually favored by powerful men.

It is undeniable that triple-talaq degrades Muslim women and further disempowers this slice of Indian society that has already has low literacy and socio-economic markers. Yet, it was defended in court as being an ‘essential part of Islam’ – by a prominent non-governmental organization, the mostly all-male, deeply conservative Muslim Personal Law Board (MLPB). Contrary to this position Muslim women — represented through organisations like the Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement) and individual petitioners like Shayara — argued that the practice was unconstitutional.

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Published on May 31, 2017
Author:          Filed under: Analysis
 

Special Announcement–The Max Planck Encyclopedia of Comparative Constitutional Law

I-CONnect congratulates Oxford University Press (OUP) on the recent launch of the Max Planck Encyclopedia of Comparative Constitutional Law. This will be an important resource for the field, and we encourage our readers to discover the richness, depth and diversity of the many subjects it covers here at this link. Below we reproduce the full text of OUP’s announcement, along with a clickable banner at the bottom for quick access to the Max Planck Encyclopedia of Comparative Constitutional Law.

Announcing the launch of the Max Planck Encyclopedia of Comparative Constitutional Law

April 27, 2017

Oxford University Press is proud to launch the Max Planck Encyclopedia of Comparative Constitutional Law as a key research complement and application to the vast trove of primary constitutional texts and analytical commentary already available in the constitutional law family of products: Oxford Constitutions of the World and US Constitutional Law.

Overseen by the editors at the Max Planck Foundation for International Peace and the Rule of Law, the Max Planck Encyclopedia of Comparative Constitutional Law will provide a high level of analytic coverage of constitutional law topics in a comparative context. The encyclopedia articles—modeled on those in the Max Planck Encyclopedia of Public International Law—address a focused range of topics that seek to provide the best coverage of the essence, character, development, and history of constitutional law from a global perspective. The articles will define and cover the basis and foundations of state formation and constitutional law, as well as analyzing and explaining underlying legal concepts such as:

  • human rights;
  • constitutional formation;
  • scope of state protections;
  • the defining structures of governmental makeup;
  • types of legal structures and interactions within a constitutional law system; and
  • legal constitutional concepts that make up constitutional law.

In addition, articles provide insight and detail into key cases that have contributed to or defined constitutional law concepts on a global scale such as Brown v Board of Education (United States), the Mizrahi Bank Case (Israel), the Minerva Mills Case (India), and Marbury v Madison (United States), and discuss key instruments in constitutional law history such as the Magna Carta and the Charter of Medina, among others. The service provides browsing and searching of all of the material within the resource based on keywords and subjects. MPECCoL content is also connected to the Oxford Law Citator—a state-of-the-art navigation tool which provides direct links to related materials within MPECCoL, other online law resources from OUP, and important references available elsewhere. The Max Planck Encyclopedia of Comparative Constitutional Law will provide any constitutional law scholar, academic, or researcher interested in researching the development of constitutional law across and with a global comparative understanding.

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Published on May 29, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

–Simon Drugda, Nagoya University Graduate School of Law (Japan)

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 the Czech Republic held that foreigners without official employment or permanent residence are not entitled to free medical care.
  2. The Constitutional Court of Taiwan held that current laws preventing members of the same sex from marrying violate their right to equality and are unconstitutional.
  3. The US Supreme Court has struck down two congressional districts in North Carolina because race was an impermissibly predominant factor in their creation.
  4. The US Supreme Court made it easier for companies to defend against patent infringement lawsuits. Such lawsuits can be filed only in states where the target companies are incorporated, to prevent forum shopping.
  5. The US Supreme Court will hear the constitutional dispute over President Trump’s temporary ban on entry of foreign nationals of six Mideast nations with Muslim majorities.
  6. Philippine President Rodrigo Duterte stated he will ignore the Supreme Court and Congress as he enforces martial law across the southern third of the country, despite the constitutio giving them oversight.
  7. The Constitutional Court of Korea upheld a law that restricts subsidies on the purchase of smartphones and other mobile devices.

In the News

  1. Mongolian President Tsakhiagiin Elbegdorj submitted several proposals for consideration during the process of amendment of the country’s Constitution.
  2. After a meeting between the Nicolas Maduro regime and the Venezuelan Episcopal Conference (CEV), the catholic bishops rejected the proposal of a Constitutional Assembly to rewrite the nation’s Constitution.
  3. The Somali Ministry of Constitutional Affairs (MoCA) along with the Speakers of the National Federal Parliament have introduced to international partners a plan for the review of Somalia’s Provisional Constitution.
  4. Japanese PM Shinzo Abe has renewed his call to amend Article 9 of the Constitution that limits the establishment, threat, and use of offensive military forces.
  5. The Netherlands resumes the process of the second reading to amend the Constitution. The amendment will provide a constitutional basis of Bonaire, St. Eustatius, and Saba and establish an Electoral Council for the islands.
  6. The Senate of the Oliy Majlis (upper house of the Uzbek parliament) approved amendments to the law on the Constitutional Court.
  7. Syrian groups agree to constitutional consultations.

New Scholarship

  1. Richard Albert, How a Court Becomes Supreme, 77 Maryland Law Review (forthcoming 2017) (in paper prepared for annual “Constitutional Law Schmooze,” proposing eight strategies for high courts to invalidate constitutional amendments)
  2. Anthony J. Connolly, The Foundations of Australian Public Law: State, Power, Accountability (2017) (exploring the themes of state, power and accountability in Australia’s public law across federal, state and territory jurisdictions)
  3. Jeremy Cooper (ed.), Being a Judge in the Modern World (2017) (covering a wide breadth of topics on “being a judge” including the impact of technological innovation, judicial diversity)
  4. Loretta Dell’Aguzzo and Emidio Diodato (eds), The ‘state’ of Pivot States in South-Eastern Mediteranean. Turkey, Egypt, Israel, and Tunisia after the Arab Spring (2017) (examining pivot states in terms of their stability)
  5. Shai Dothan, International Courts Improve Public Deliberation, Michigan Journal of International Law (2017 forthcoming) (explaining how international courts shape public discourse by supplying legal arguments to the public and by building networks of activists, how these courts interact with governments, and how they form an international community of lawyers)
  6. Joshua C. Gellers, The Global Emergence of Constitutional Environmental Rights (2017) (presenting an interdisciplinary theoretical framework, statistical analysis, and comparative case study of Nepal and Sri Lanka designed to explain the diffusion of constitutional environmental rights)
  7. Roderick M. Hills Jr. and Shitong Qiao, Voice and Exit as Accountability Mechanisms: Can Foot-Voting Be Made Safe for the Chinese Communist Party?, 48 Columbia Human Rights Law Review (2017) (examining how exit may complement voice in China and improve governmental accountability)
  8. Helen Irving, Citizenship, Alienage, and the Modern Constitutional State A Gendered History (2017) (examining denaturalization laws and their impact on women around the world, with a focus on Australia, Britain, Canada, Ireland, New Zealand and the United States)
  9. András Jakab and Dimitry Kochenov (eds.), The Enforcement of EU Law and Values: Ensuring Member States’ Compliance (2017) (covering all legal issues of EU law enforcement)
  10. Liav Orgad, Naturalization, in Ayelet Shachar, Rainer Baubock, Irene Bloemraad, and Maarten Vink (eds.), The Oxford Handbook of Citizenship (2017 forthcoming) (exploring legal and theoretical aspects of naturalization including its object, ethics, trends in naturalization policy, and future directions for study)
  11. Stéphanie De Somer, Autonomous Public Bodies and the Law: A European Perspective, (2017) (discussing the impact of EU law on the creation and empowerment of autonomous public bodies at Member State level, and recent attempts to rationalize delegation to APBs)
  12. Edward Stiglitz, Delegating for Trust, University of Pennsylvania Law Review (forthcoming 2017) (arguing that that Congress may delegate to take advantage of the credible rationality, transparency, and public trust afforded to administrative procedures)
  13. Paul R. Verkuil, Valuing Bureaucracy: The Case for Professional Government (2017) (examining the effects of outsourcing government functions to private contractors)
  14. Wendy E. Wagner, William F. West, Thomas Owen McGarity, and Lisa Peters, Dynamic Rulemaking, 92 N.Y.U. Law Review (2017) (empirically exploring the vibrant world of rule revision and the incentives agencies have to revise and update their rules outside of formal requirements)
  15. Alex Wang, Explaining Environmental Information Disclosure in China, 44 Ecology L.Q. (forthcoming 2017) (examining the emergence of environmental information disclosure in China, and its social effects in the authoritarian bureaucratic governance setting)
  16. Po Jen Yap and Eric Chan, Legislative Oaths and Judicial Intervention in Hong Kong, 47 Hong Kong Law Journal (2017) (disagreeing with the Hong Kong Court of Appeal’s decision to disqualify two newly elected members of the Legislative Council from office)

Calls for Papers and Announcements

  1. The Centre for Asian Legal Studies (CALS) at the Faculty of Law, National University of Singapore and the International Centre for Ethnic Studies (ICES), Sri Lanka invite paper proposals for a Conference on “Religion and Constitutional Practices in Asia,” to be held at ICES in Colombo, Sri Lanka on November 9-10, 2017. The deadline for submission of abstracts is July 10.
  2. Yale Law School hosts the Seventh Annual Doctoral Scholarship Conference, to be held on November 10-11, 2017, in New Haven, Connecticut. This year’s three thematic wheels will cover papers in the fields of “International Law”, “Law, Society, History”, and “Law, Politics, Theory.” The deadline for submissions is July 1, 2017.
  3. On September 15, 2017, Savannah Law Review will present “Rise of the Automatons,” a colloquium examining the legal implications of automation in society. Rise of the Automatons will explore the law’s response to a variety of topics, including cyber security threats, displaced workers, automation of legal industry jobs, and legal rights of robots. Interested scholars may submit a 500-word abstract to lawreview@savannahlawschool.org by July 17, 2017, for consideration.
  4. University of Illinois College of Law and University of Bologna School of Law, Center for Constitutional Studies and Democratic Development invite paper proposals for the Third Annual Illinois-Bologna conference on “Constitutional History: Comparative Perspectives.” The conference will be held in Bologna, Italy, on November 13-14, 2017. Proposals received by July 1, 2017, will receive priority.

Elsewhere Online

  1. Joseph Fishkin, Locating the absolute minimum level of policy “seriousness” our public sphere demands, Balkinization
  2. Jack M. Balkin, Constitutional Rot and Constitutional Crisis, Balkinization
  3. Robert Craig, Zombie Prerogatives Should Remain Decently Buried: Replacing the Fixed-term Parliaments Act 2011 (Part 1, Part 2), UK Constitutional Law
  4. Andrew Cook, Changing the way the UK votes: the Conservative manifesto’s proposals relating to the conduct of elections, The Constitution Unit
  5. Tatiana Khramova, To Pay or Not to Pay – Russia’s Next Step Away from the European Convention, Blog of the IACL, AIDC
  6. Nomfundo Ramalekana, Human Dignity, Land Dispossession, And The Right To Security Of Tenure: A Note On The South African Constitutional Court’s Judgement In Daniels v Scribante, OxHRH
  7. Juan Antonio Mayoral Díaz-Asensio, Judicial Trust as a Zero-Sum Game in Turbulent Times, Verfassungsblog
  8. Pierre de Vos, The Constitutional Court speaks about land and dignity » Constitutionally Speaking, Constitutionally Speaking
  9. Eugene R. Fidell, The Rocky Road of Military Justice: Pakistan, India and Beyond, Law and Other Things
  10. Praharsh Johorey, The Section 6A Challenge: “Illegal Migration” as “External Aggression,” Indian Constitutional Law and Philosophy
  11. Upendra Baxi, Anthropogenic Harm and Subdelegation, Admin Law Blog
  12. Eric C. Ip, The Morality of Administrative Law, Admin Law Blog
  13. Linda Greenhouse, Election Wars at the Supreme Court, The New York Times
  14. Noah Feldman, Lessons From Turkey’s Slide Toward Dictatorship, Bloomberg View
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Published on May 29, 2017
Author:          Filed under: Developments
 

Responsibility and Judgment in a Muted 3-D Dialogue: A Primer on the Same-Sex Marriage Case in Taiwan

Ming-Sung Kuo, Associate Professor of Law, University of Warwick & Hui-Wen ChenResearch Assistant, University of Warwick

The Taiwan Constitutional Court (TCC) made its long-awaited decision on same-sex marriage on May 24, 2017 (the Same-Sex Marriage Case). In this landmark ruling (JY Interpretation No 748), the TCC declares that the exiting provisions on marriage in the Civil Code, which essentially limits marriage to opposite-sex couples, unconstitutionally restricts gay people’s freedom of marriage under Article 22 (a catch-all clause on unenumerated fundamental rights) and violates the equal protection under Article 7 in the Constitution. In line with its long-established practice in judicial remedy, the TCC issues a suspend remedial order and holds up the declaration of unconstitutionality with respect to the existing provisions on marriage in the Civil Code until after two years from the date of its promulgation, allowing the parliament (aka the Legislative Yuan) time to hammer out the required legal framework for same-sex marriage through legislation. Anticipating that the required statutory framework might be stalled in the parliamentary procedures with the two-year clock running out, the TCC further decrees that should the parliament fail to legislate same-sex marriage, the existing Civil Code will then be extended to same-sex couples who wish to enter into marriage, despite the family structure institutionally conceived according to the model of opposite-sex marriage.

As has been widely noted in mass media around the globe, this ruling is groundbreaking in comparative constitutionalism and human rights law, indicating that the value of antidiscrimination is no longer part of the hegemony of Western constitutionalism but rather opens new frontiers in East Asia. It should be welcomed. Apart from its progressive, liberal ruling as summarized above, this case raises issues surrounding responsibility and judgement facing the court on the receiving end of legal cross-fertilization. We shall demonstrate how the TCC positions itself towards the question of political responsibility arising from a controversial judicial judgment like the Same-Sex Marriage Case through a 3-D dialogue.

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Published on May 26, 2017
Author:          Filed under: Analysis
 

Egypt’s Amended Judicial Authority Laws

The Arab Association of Constitutional Law’s Judiciary Working Group has been engaging in a debate on the recent changes to the judiciary in Egypt. The substance of that discussion has been summarized and translated below. The main submissions came from Tarek Abdel Aal (Advocate before the Court of Cassation) and Ahmed Sisi (Counsellor at the Majles al-Dawla, or State Council).  

Introduction

On 26 April 2017, Egypt’s House of Representatives approved, by a twothirds majority vote of members, amendments to the Judicial Authority Law. The Parliament’s approval came in a general session, when MPs were suddenly asked to include the bill in the session’s agenda and vote on it, a few hours after the Legislative Committee referred the law to the general session. Uncharacteristically, the vote was held without any prior debate on the observations made earlier by the State Council on the bill, or consideration of why the Legislative Department of the State Council had rejected the bill on the grounds of unconstitutionality. The parliament is under no obligation to take into consideration the State Council’s opinion on these issues, though it typically does.

The law was promulgated the next day, on 27 April 2017, as Law No. 13 of 2017. It amended the laws of the judicial bodies (the Administrative Prosecution Authority, the State Lawsuits Authority, the Court of Cassation and the State Council). The amendments are considered by many to be a flagrant intervention in the justice sector by the executive authority, largely undermining the independence of the judiciary and the separation of powers. The amendments are viewed by some as a punishment directed at Judge Dakroury, who gave the verdict confirming Egyptian sovereignty over Tiran and Sanafir islands, by depriving him of the State Council Chairmanship.

The Amendments

The amendments address the system of appointing the heads of four judicial institutions by changing the relevant articles in their governing laws in a similar way.

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Published on May 24, 2017
Author:          Filed under: Developments
 

Conference Report–Imposed Constitutions: Aspects of Imposed Constitutionalism–University of Nicosia, Cyprus

Yota NegishiWaseda University; Research Fellow of the Japan Society for the Promotion of Science

On 5-6 May 2017, the School of Law of the University of Nicosia hosted the international Conference Imposed Constitutions: Aspects of Imposed Constitutionalism, in collaboration with the Research Group on Constitution-Making and Constitutional Change of the International Association of Constitutional Law (IACL), and the Centre for European Constitutional Law – Themistocles and Dimitris Tsatsos Foundation. In the Opening Ceremony, Demetris Syllouris (President, House of Representatives) and Achilles Emilianides (Dean, University of Nicosia) introduced the history of the Constitution of the host country Cyprus, which is an emblematic example of what is defined as externally imposed constitution. Subsequently, Xenophon Contiades (President, Centre for European Constitutional Law, Convenor) explained the Conference’s aim to discuss a multitude of theoretical and practical problems of “imposed” constitutionalism from the perspective of comparative constitutional law.

The first session was titled Imposed Constitutions Theory Revisited, chaired by Professor Xenophon Contiades and Alkmene Fotiadou (Centre for European Constitutional Law).

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Published on May 23, 2017
Author:          Filed under: Reviews
 

What’s New in Public Law

–Nausica Palazzo, Ph.D. researcher in Comparative Constitutional Law, University of Trento

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 invalidated two clauses of the legislative act meant to fast-track the approval of the peace deal with FARC rebels.
  2. The Supreme Court of Brazil authorized the launch of a corruption probe into President Temer.
  3. The Constitutional Court of Moldova held unconstitutional the ban on issuing civil status documents, IDs, and driving licenses to debtors.
  4. The Supreme Court of India decided to defer decision in the Shayara Bano case on Muslim instant divorce.
  5. The German Constitutional Court found unconstitutional higher taxation of certain harmful share transfers.

In the News

  1. The European Commission (re)enters talks with Poland concerning the overhaul of the Constitutional Tribunal, under the rule of law framework.
  2. President Trump expands of the policy to freeze foreign aid to NGOs offering or advocating abortion.
  3. Georgia’s opposition parties demand a popular referendum on the constitutional reform.
  4. The UK will not leave the ECHR, according to the Conservative Party Manifesto.
  5. The Court of Cassation in Italy upheld a fine for carrying kirpan, a knife considered sacred among Sikhs, in public.
  6. The Eurogroup will be briefed about Greece reforms, to greenlight the next disbursement of financial assistance by ESM.
  7. The leader of the pro-reform camp Rouhani wins Iran’s presidential elections.

New Scholarship

  1. Mark Tushnet (Ed.), Comparative Constitutional Law (2017) (providing access to some of the most influential writings in comparative constitutional law dating from 1987 to 2015)
  2. Bui Ngoc Son, Constitutional Mobilisation in China, International Journal of Law in Context (2017) (analyzing recent constitutional mobilisation in China, embodied in the “weiquan” right defense movement, Charter 08 and the 2013 constitutionalism debate)
  3. Gábor Attila Tóth, The Authoritarian’s New Clothes: Tendencies Away from Constitutional Democracy, The Foundation for Law, Justice and Society (2017) (identifying features of authoritarianism to distinguish it from weaker forms of democracy)
  4. Stijn Smet, Resolving Conflicts between Human Rights: The Judge’s Dilemma (2017) (proposing a novel framework for judicial resolution of human rights conflicts)
  5. Giselle Corradi, Eva Brems, Mark Goodale (Eds.), Human Rights Encounter Legal Pluralism Normative and Empirical Approaches (2017) (analyzing the interplay between legal pluralism and human rights, by drawing on experiences from Europe, Latin-America and Sub-Saharan Africa)
  6. Rivka Weill, On the Nexus of Eternity Clauses, Proportional Representation, and Banned Political Parties, Election Law Journal (2017 forthcoming) (describing the empirical nexus between proportional representation and bans on extremist political parties, or absolutely entrenched values)
  7. Hans-Martien ten Napel, Constitutionalism, Democracy and Religious Freedom. To Be Fully Human (2017) (demonstrating why a more classical understanding of the idea of a liberal democracy can allow for greater respect of the right to freedom of religion and belief)
  8. D. Theodore Rave, Institutional Competence in Fiduciary Government, in Andrew S. Gold & D. Gordon Smith (Eds.), Research Handbook on Fiduciary Law (2017 forthcoming) (addressing the competence of courts in policing the relationship between elected officials and the electorate, and the applicability of private fiduciary law principles)
  9. Alberto Alemanno and Laurent Pech, Thinking justice outside the docket: A critical assessment of the reform of the EU’S court system, 54 Common Market Law Review (2017) (providing a critical assessment of the structural reforms to the European judicial system in 2015)

Calls for Papers and Announcements

  1. The American Society of International Law invites papers for its 2017 Research Forum, to be held October 27-28, 2017, at the Washington University School of Law in St. Louis.
  2. The Oxford University Press launched the Max Planck Encyclopedia of Comparative Constitutional Law, covering a wide range of constitutional law topics in comparative perspective.
  3. Paper submissions are invited for the Third Annual Illinois-Bologna conference on “Constitutional History: Comparative Perspectives.” The conference is sponsored by University of Illinois College of Law, University of Bologna School of Law, Center for Constitutional Studies and Democratic Development, and will be held on November 13 and 14, 2017 in Bologna, Italy.
  4. The University of Ottawa Faculty of Law invites submissions for its Second Annual Food Law & Policy Conference, to be held in Ottawa on November 2-4, 2017. Abstracts should be sent by June 9, 2017. Comparative analyses are welcome.
  5. The Joint Council on Constitutional Justice (JCCJ) held its annual meeting at the German Federal Constitutional Court on May 18-19. The introductory remarks of the president of the Court are available here.
  6. The Sant’Anna School for Advanced Studies hosts a symposium on “The Constitution of Canada: History, Evolution, Influence and Reform,” on May 24, 2017 , on the occasion of the 150th Anniversary of the Confederation.
  7. The Sant’Anna School for Advanced Studies hosts a seminar on “Current Perspectives on Belgian Federalism,” on May 25, 2017 in Pisa, Italy.
  8. The Sant’Anna School for Advanced Studies organizes a seminar on “Self-Rule and Shared Rule – A ‘Global Theory of Federalism’ Revisited,” on May 22, in Pisa.
  9. The Sant’Anna School for Advanced Studies hosts a seminar on “Crisi dell’Europa e istanze territoriali: l’apporto della comparazione,” on May 23, 2017 in Pisa.

Elsewhere Online

  1. Yasuo Hasebe, The end of Japan’s pacifist constitution? Against welcoming an unknown angel, ConstitutionNet
  2. Colin PA Jones, Testing time for the Constitution at 70, The Japan Times
  3. Liz Curran, Freedom of Speech or Enabling a Right to Insult? The Australian Debate over Section 18C of the Racial Discrimination Act 1975, OxHRH Blog
  4. Diane Desierto, China’s ‘One Belt, One Road’ Initiative: Can A Bilaterally-Negotiated ‘Globalization 2.0’ Internalize Human Rights, Labor, and Environmental Standards?, EJIL:Talks!
  5. Paul Kalinichenko, A Principle of Direct Effect: The Eurasian Economic Union’s Court pushes for more Integration, Verfassungsblog
  6. Jeff Hirsch, Does USERRA Validly Abrogate State Sovereign Immunity?, Workplace Prof Blog
  7. Laura Sjoberg, On Transgender People and the Military, Harvard Civil Rights-Civil Liberties Law Review
  8. Anastasia Karatzia, New Developments in the context of the European Citizens’ Initiative: General Court rules on ‘Stop TTIP’, EU Law Analysis
  9. Richard Giragosian, A Pyrrhic victory in Yerevan? Understanding Armenia’s one party dominance, EUROPP
  10. Carwyn Jones, Analysis: Proprietors of Wakatū and Others v Attorney-General [NZSC], Blog of the IACL, AIDC
  11. Namita Bhandare, Why is triple talaq more important than nikaah halala and polygamy?, Hindustan Times
  12. George Williams, We desperately need a genuine plan for federal reform, The Sydney Morning Herald
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Published on May 22, 2017
Author:          Filed under: Developments
 

Be Careful What You Wish For – A Short Comment on “Mandatory Voting as a Tool to Combat the New Populism”

–Ursus Eijkelenberg, International Institute for the Sociology of Law

In a recent piece on ICONnect, the question was raised whether mandatory voting could be a potential “silver bullet” to dethrone autocratic populists. According to the authors, “new populist forces would face electoral defeat if the large number of generally disillusioned but politically fatigued and inactive voters were obliged to enter the polls.” In this comment, I will raise doubts about the effectiveness of this “tool” in combating the new populism.

A contradictory feature of Hungarian and Polish politics lies in the fact that despite a significant proportion of the population being in a state of political apathy and disinterest in public affairs, the society is nonetheless highly politicized and divided.

Although seemingly peripheral to the main argument, the above statement from the recent piece leads to an assessment of the proposed measure in two ways.

Read the rest of this entry…

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Published on May 20, 2017
Author:          Filed under: Analysis