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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (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 President of South Africa has appointed Judges Narandran “Jody” Kollapen and Rammaka Steven Mathopo as Judges of the Constitutional Court, with effect from 1 January 2022.
  2. Romania’s Constitutional Court has called into question the primacy of European law, ruling that a decision by the European Court of Justice cannot be applied without first amending the country’s constitution.
  3. Poland’s Justice Minister has requested the Polish Constitutional Court to rule on whether a mechanism linking European Union funds to rule of law is compatible with the country’s constitution.
  4. In a decision of 10 December 2021 the Hungarian Constitutional Court stated that as long as the complete effectiveness of EU rules on migration is not ensured, Hungary has the right to exercise such competencies. In order to effectively protect its borders, Hungary is entitled to adjust its national rules to reality by adopting additional, individual measures.
  5. The Italian Constitutional Court has ruled inadmissible the judgement proposed by some parliamentarians against the introduction of the obligation of a “green pass” to participate in parliamentary proceedings. According to the Court, this obligation does not affect any constitutional attribution of parliamentarians.

In the News

  1. The leftist candidate Gabriel Boric has won Chile’s presidential election.
  2. Libya’s first presidential election, due to take place on 24 December, has been postponed.
  3. Former President Donald Trump appealed to the Supreme Court to block the release of documents from the White House to the House committee investigating the 6 January riot at the Capitol.
  4. On 9-10 December 2021 the first international Summit for Democracy took place. The Summit was attended by more than 275 participants including Heads of State and Heads of Government.
  5. More than 800 faith leaders urged President Joe Biden and Senate Democrats to pass voting rights legislation in 2022. For his part, President Biden confirmed that the approval of the legislation on voting rights is a priority of his administration.

New Scholarship

  1. Hugo Rojas, Miriam Shaftoe, Human Rights and Transitional Justice in Chile (forthcoming 2022) (offering an overview of transitional justice measures implemented in Chile since the start of the democratic transition)
  2. Huawen Liu, China’s Path of Human Rights Development (forthcoming 2022) (exploring China’s human rights development path, investigating economic, social and cultural rights)
  3. Lutforahman Saeed, Islam, Custom and Human Rights (forthcoming 2022) (providing deep insight into written law, customary law and Islamic law in Afghanistan after the 2004 Constitution)
  4. Molly Katrina Land, Kathryn Rae Libal, Jillian Robin Chambers (eds.), Beyond Borders. The Human Rights of Non-Citizens at Home and Abroad (2021) (exploring the rights to be guaranteed to non-citizens)
  5. Helle Porsdam, The Right to Science (2021) (examining the actionable and justiciable right to science)

Calls for Papers and Announcements

  1. ANU Law and the Centre for International and Public Law have announced that registrations for an international conference on the theme of Public Law and Inequality to be held on 16-18 February 2022 are open. The conference will be held in a hybrid format, with an in-person conference in Canberra for Australia-based participants and virtual attendance available for international participants.
  2. In 2023, Federal Law Review will publish a special issue on themes related to Equality and Public Law. Paper submissions for this special issue are due by 22 March 2022.
  3. The University Association for Contemporary European Studies (UACES) is pleased to announce its 52nd Annual Conference to discuss topics related to European Studies and Europe. The Conference will tale place in Lille on 5-8 September 2022.
  4. On 12 January 2022 the University Association for Contemporary European Studies (UACES) and the Irish Association for Contemporary European Studies (IACES) will host an online conference on “The UK and Ireland in time of Crisis. The future within and without Europe”.
  5. The Italian Association of Comparative and European Public Law organizes on 9-10 September 2022, in Caserta at the University “Luigi Vanvitelli”, a conference concerning “Environmental constitutionalism between anthropocentrism and biocentrism. New perspectives from comparative law“. The deadline for proposals is 15 February 2022.

Elsewhere online

  1. Gábor Halmai, Restoring Constitutionalism in Hungary, Verfassungsblog
  2. András Jakab, How to Return from a Hybrid Regime to Constitutionalism in Hungary, Verfassungsblog
  3. Bogdan Iancu, Handle with Care, Verfassungsblog
  4. Richard Pomfret, Why does the EU look different through English eyes?, LSEblog
  5. Gareth Evans, Welsh Devolution and the Cooperation Agreement, UKCLA blog
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Published on December 27, 2021
Author:          Filed under: Developments
 

The Call for Politics in the Americas: A Constitutional Turning Point?

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In his fascinating book Inventing the People: The Rise of Popular Sovereignty in England and America, Edmund S. Morgan brings very precise words to describe popular sovereignty: “Government requires make-believe, requires the willing suspension of disbelief… In order to be viable, in order to serve its purpose, whatever that purpose may be, a fiction must bear some resemblance to fact. If it strays too far from fact, the willing suspension of disbelief collapses. And conversely it may collapse if facts stray too far from the fiction that we want them to resemble.”[1] There is a fragile equilibrium between fiction and reality at the core of constitutionalism. We need those fictions, but, though they cannot be deemed “self-evident truths,”[2] they should at least bear some connection to the real world, and vice-versa. Democracies are seriously challenged when such a suspension of disbelief collapses, a trend that has proven true with new strategies of mass communication that are strongly adopted by far-right movements. In the Americas, with greater or lesser success, this could be found in Trump (US), Bolsonaro (Brazil), and, most recently, Kast (Chile), just to cite the three most in evidence. But, if disrupting that equilibrium is a major feature connecting them, how the real world – and, particularly, the political system – can be better protected to fend off attacks on such an equilibrium?

Morgan’s words look indeed increasingly detached from some constitutional democracies these days. Concepts – or make-believes – such as liberty, democracy, equality, representation, and the people, for instance, have gone far beyond the disputes that are naturally expected from complex societies living under a democracy. They have been strategically remodeled to operate in a parallel dimension that is not that of constitutionalism, even if they adopt the language of constitutionalism. The playbook is basically the same if we look closely at Trump’s, Bolsonaro’s, and Kast’s political strategies. All of them are species of what Tom Philips and John Bartlett dubbed “Steve-Bannon-style extremists,” but they could also be called the disrupters of that constitutional equilibrium between make-believes and reality. If so, a sequence of comparable developments may serve not only as a cautionary tale of what could happen elsewhere, but also as a normative guideline to fend off such a kind of threats to liberal democracies.

Donald Trump is a fascinating case because it reveals how the imponderable prevails in this new normal. Barton Gellman wrote for The Atlantic a very interesting piece titled Trump’s Next Coup Has Already Begun,” whose subtitle speaks volume of the growing perception that America’s near future will be once again challenged by Donald Trump: “January 6 was practice. Donald Trump’s GOP is much better positioned to subvert the next election.” His focus is on how Trump has subverted the Republican Party and how he is “preparing in plain view” to “[topple] a free election” in 2024. This is certainly a development that raises serious concerns for America and other democracies, but it also provides some important insights about constitutional and political design from a comparative perspective.

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Published on December 22, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Nakul Nayak, Assistant Professor at Jindal Global Law School, India.


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 Hungarian Constitutional Court ruled against a petition from Prime Minister Viktor Orban’s government, seeking to challenge a ruling from the Court of Justice of the European Union that held Hungary’s asylum policies broke European law.
  2. The Constitutional Court of Indonesia ordered the government to amend parts of a controversial job creation law within two years, describing it as conditionally unconstitutional.
  3. Ecuador’s Constitutional Court upheld a lower court ruling that invalidated an environmental license to a mining company for initial exploration at the Rio Magdalena project in the Los Cedros forest.
  4. The German Constitutional Court declared that so-called “emergency brake” measures – which obliged states or districts to put in place curfews and other restrictive measures if the seven-day incidence rate per 100,000 people rose above 100 on three consecutive days – were constitutional.
  5. Poland’s Constitutional Tribunal ruled that the European Court of Human Rights did not have the jurisdiction to review the legality of appointments of the Polish court’s judges.

In the News

  1. The European Commission published draft guidance outlining workers’ rights for online companies such as Uber and Deliveroo.
  2. A high court in South Africa ordered the former president Jacob Zuma to return to jail after setting aside a decision to release him on medical parole.
  3. The Chief Justice of India advocated for a proposal to restructure the judiciary by establishing courts of appeal to hear cases against high court orders, while leaving the Supreme Court to examine only issues of constitutional importance.
  4. Uzbek President Shavkat Mirziyoyev pledged to reform Uzbekistan’s constitution.
  5. The United Arab Emirates has initiated one of its largest legislative reforms. Changes to the law include enhancing community protection from a set of online crimes and prohibition of consumption of alcoholic beverages in public places, among several others.

New Scholarship

  1. Giuseppe Martinico, Filtering Populist Claims to Fight Populism: The Italian Case in a Comparative Perspective (investigating how populists in power borrow, use and manipulate categories of constitutional theory and instruments of constitutional law).
  2. Emmett Macfarlane, Judicial amendment of the constitution, International Journal of Constitutional Law (examining the conceptual distinction between judicial interpretation and judicial amendment).
  3. Amal Sethi, The “Method and Madness” of Authoritarian Constitution Making in Democratic Regimes, Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società (examining why constitution-making exercises by would-be autocrats are largely successful and accepted by large sections of the populace).
  4. Jacob O. Arowosegbe, Revisiting the legitimacy question of the Nigerian 1999 Constitution, Global Constitutionalism (revisiting the legitimacy question as it touches the Nigerian 1999 Constitution, bringing to the discourse a review and application of pertinent theoretical perspectives on constitution making and constitutional legitimacy).
  5. Anupama Kumar, The limits of constitutionality? Centrally Sponsored Schemes in law and policy, Indian Law Review (examining Centrally Sponsored Schemes (CSS) as a means of Union-State fiscal transfers in light of the Indian Constitution. CSS are programmes designed and funded by the Union government on subjects within the jurisdiction of State governments).
  6. Adam Chilton & Mila Versteeg, Identifying Constitutional Law (exploring empirical research in the context of “small-c” constitutions).
  7. Moiz Tundawala, Ambedkar’s Dhamma: A Counter Theology of Law for Indian Political Thought, Political Theology (arguing that B.R. Ambedkar attacked the social law of Hindu dharma for legalizing and legitimizing Brahminical sovereignty in the form of a birth-based caste order centred around the ambivalent sacrality of untouchability).
  8. Brian Christopher Jones, Judicial Review and Embarrassment, Public Law (arguing that courts in the UK, US, and elsewhere have at times intentionally embarrassed the elected branches, and that this unfortunate practice should stop).
  9. Lara Côrtes, Camila Gianella, Angela M. Páez, and Catalina Vallejo Piedrahíta, Comparing Experiences of Constitutional Reforms to Enshrine the Right to Water in Brazil, Colombia, and Peru: Opportunities and Limitations, Water (examining recent attempts to constitutionalize the right to water in Brazil, Colombia, and Peru, and exploring why these attempts have been successful in Peru but not Brazil and Colombia).

Calls for Papers and Announcements

  1. The International Association of Constitutional Law (IACL), the Centre for European and Comparative Legal Studies (CECS), University of Copenhagen, and the Nordic network CONNOR 2030 will organize a hybrid round table on “The Impact of Digitalization on Constitutional Law” on January 31 and February 1, 2022. Registration deadline is January 20, 2022.
  2. The University of Hamburg and The Legal Priorities project has issued a call for papers for the 2022 Multidisciplinary Forum on Longtermism and the Law which will be held from 9 to 11 June 2022. Deadline for submissions is February 15, 2022.
  3. The Qualitative Data Repository invites proposals from law scholars to pilot a new tool for making qualitative and multi-method research more transparent. The “Anno-REP” tool allows scholars to restructure, edit, and package annotations that enhance their digital scholarship. Participants will receive an honorarium of $1,500 and will gather at a workshop in April 2022. QDR will cover travel and lodging expenses. Proposals are due by January 3, 2022.
  4. The International Society of Public Law will organize the 2022 ICON-S Writing school, a set of 8 lectures, open to everyone, offered by internationally renowned legal academics. Lectures are open to everyone with prior registration by email at iconscommunityandengagement@gmail.com. 15 early-career scholars will also be admitted to a tutorial program where they will receive feedback on their manuscripts. The application deadline is January 5, 2022.
  5. The Centre for International and Public Law at the Australian National University will host a conference at ANU College of Law in Canberra on 16-18 February 2022. The conference will be face-to-face for Australia based speakers and attendees, with international speakers and attendees able to participate through a webinar format. Registrations are open.
  6. The Federal Law Review, published by the Australian National university, invites submissions for a special issue on equality and public law. Deadline for submissions is March 22, 2022.
  7. The Comparative Constitutional Law and Administrative Law Journal, published by the National Law University, Jodhpur, India, invites submissions for its next issue. Deadline for submissions is February 15, 2022.
  8. Verfassungsblog is currently hosting an online debate on Restoring Constitutionalism.

Elsewhere Online

  1. João Victor Archegas & Christian Perrone, ‘Don’t Snoop on Me’: How 9/11 ultimately sparked a movement for privacy and data protection in Brazil, Verfassungsblog.
  2. Monika Zalnieriute, How Public Space Surveillance is Eroding Political Protests in Australia, Verfassungsblog.
  3. Karan Gupta, Notes From a Foreign Field: The Botswana Court of Appeal’s Judgment Decriminalising Same-Sex Relations, Indian Constitutional Law and Philosophy.
  4. Mark Tushnet, Mini-Review – N.W. Barber, The United Kingdom Constitution: An Introduction, Balkinization.
  5. Pierre de Vos, Why Is Ramaphosa Dragging His Feet With Con Court Appointments?, Constitutionally Speaking.
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Published on December 20, 2021
Author:          Filed under: Developments
 

Rethinking the Legal Constitution of Difference in the Philippines

Armi Beatriz E. Bayot, University of Oxford Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In February 2021, multiple media outlets broke the news that the Philippine National Police (PNP) had “rescued” a group of young indigenous Lumad students from the clutches of alleged communist operatives. The government rhetoric surrounding the incident was thick with paternalism – eerily calling to mind the paternalism with which colonisers spoke of “natives” in the Philippines in the first half of the 20th century.

The PNP claimed that they took the Lumad students from a prominent Catholic university to “save them” from “communist operatives” who had allegedly kidnapped and “brainwashed” them. Several teachers were arrested and linked to the communist insurgency. The Lumad students and their teachers, however, have countered this, saying that the students were taking shelter at the university to escape armed conflict in their home island of Mindanao.[1] A spokesperson for the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) has said that the task force will be exploring the possibility of using the Indigenous Peoples’ Rights Act (IPRA)[2] to file cases against the teachers for committing “cultural violation” against the Lumad students, among others.[3]

The persistent idea that indigenous persons must be “saved” and are susceptible to “brainwashing”[4] sustains notions of their backwardness and ignorance that have been invoked and perpetuated by both colonial and post-colonial governments to justify “civilising missions” and exploitative projects. In the Philippines, this idea is linked to the legal constitution of difference among Filipinos that was established during the American colonial administration. The constitution of difference has resulted in the deep-rooted marginalisation of indigenous peoples,[5] which has outlasted the American colonial project.

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Published on December 19, 2021
Author:          Filed under: Analysis
 

Mandatory vaccination for the age group of sixty and over in Greece

Fereniki Panagopoulou, Assistant Professor, Panteion University (Greece)

The vaccination programme in Greece, notwithstanding the fact that it was impeccably organized, did not bring about the desired results. It did not convince a large part of the population and, consequently, it did not lead to the attainment of a wall of immunity. In this context, the Greek government announced that vaccination will be mandatory for persons over the age of sixty, whereas it also imposed a corresponding monthly fine of EUR 100. Only those infected within a hundred and eighty days from the above announcement, as well as persons who cannot receive the vaccine due to documented health reasons, are exempt from this obligation.

In light of the above, it is reasonable to wonder whether this measure actually constitutes a form of indirect compulsion, which stands in violation to our right to determine what shall be done with our own body.[1]

Is this limitation imposed on such a large part of the population in compliance with the principle of proportionality?[2] The answer to this question must be determined based on the acceptance of the premise that the freedom to exercise our constitutional rights does not entail the freedom to transmit the virus.[3] We shall examine, as a first step, whether making vaccination mandatory for this particular age group is a measure that can be deemed appropriate. Without a doubt, the answer to this question is in the affirmative. If our fellow citizens, who are over the age of sixty, get vaccinated, then our health system will be able to take a much needed respite, as the instances of hospitalizations in this age group will be reduced. Medical data in Greece speak for themselves:[4] a) nine out of ten deaths due to the coronavirus concern citizens who are over sixty years of age; b) seven out of ten  patients who are intubated are over the age of sixty; c) eight out of ten patients who are intubated are not vaccinated; d) in countries such as Portugal and Denmark, where the vaccination rate in this particular age group has reached 99%, the pressure on the health system and the loss of human lives is up to ten times lower compared to the situation in Greece. Therefore, making vaccination mandatory for this age group is anticipated to have a positive effect on the operation of the long-suffering national health system.

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Published on December 16, 2021
Author:          Filed under: Developments
 

10 Good Reads

J. H. H. Weiler, New York University School of Law; Co-Editor-in-Chief, I·CON

It has not been an easy task to compose this year’s list—not because of a dearth of good reads, but quite the opposite—embarras de richesses. And two of the books actually go back to 2020 but given that I read them late in the year, it was too late to include them in last year’s crop. I will however sneak in two honorable mentions, with only brief commentary—but they were very close.

I want to remind the reader that these are not “book reviews,” which also explains the paucity of law books or books about the law. Many excellent ones have come my way in 2021, as in previous years, but an excellent law book is not always, in fact rather rarely, a “good read” in the sense intended here: curl up on the sofa and enjoy a very good read, maybe even as a respite from an excellent law book? I should also point out that some of the “good reads” are not necessarily literary masterpieces—and yet, still, very good reads.

The “Freud cluster.” By pure happenstance four of my best reads this year are linked more or less directly to Freud, in one or two cases rather tenuously and indirectly. And there is truly no evident connection among the four, except for the “Freud connection.”

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Published on December 14, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law

Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The US Supreme Court will hear an appeal of Maine parents seeking to have the state pay for religious schools.
  2. The US Supreme Court will hear arguments from two Arizona death row inmates.
  3. The German Constitutional Court ruled that “emergency brake” measures were not unconstitutional.
  4. The Slovenian Constitutional Court held that mandatory vaccination for public sector employees is unconstitutional.
  5. The Albanian Constitutional Court will review the dismissal of President Ilir Meta.

In the News

  1. The Council of the European Union agreed on a Commission proposal for an EU law adequate minimum wages in the EU.
  2. EU and US authorities launched the EU-US Joint Technology Competition Policy Dialogue to foster cooperation in competition policy and enforcement in the technology sector.
  3. The Spanish Congress of Deputies passed a new law recognizing animals as “sentient beings”.
  4. In Australia, new legislation is being discussed proposing to regulate cryptocurrency.
  5. The Governor of Hawaii declared a state of emergency due to a seasonal cyclone.

New Scholarship

  1. Simon Chesterman, Through a Glass, Darkly: Artificial Intelligence and the Problem of Opacity, 69 The American Journal of Comparative Law (2021) (discussing three regulatory challenges arising from opacity in artificial intelligence).
  2. Ester Herlin-Karnell, Republican Theory and the EU: Emergency Laws and Constitutional Challenges, Jus Cogens (2021) (examining the connection between non-domination theory and the EU constitutional structure in the context of emergency laws).
  3. Mohammad Ibrahim, Indonesia’s Supreme Court Judgment on Religious Clothing: Failing Women and Girls in Public Schools? 10 Oxford Journal of Law and Religion (2021) (arguing that the Indonesian Court failed to address the encroachment of women and girls’ rights resulting from policies that pressure and mandate women and girls to wear a hijab in public schools).
  4. Matthias C. Ketteman, Konrad Lachmayer, Pandemocracy in Europe. Power, Parliaments and People in Times of COVID-19 (Hart Publishing, forthcoming 2021) (setting the theoretical stage and answers the democratic questions engaged by health emergencies, taking responses to COVID-19 in seven countries as case-studies).
  5. Ignatius Yordan Nugraha, Legal Pluralism, Human Rights and the Right to Vote: The Case of the Noken System in Papua, 22 Asia-Pacific Journal on Human Rights and the Law (2021) (examining the Noken system in Papua, which reflects an uneasy clash between a legal pluralist approach and universal human rights).
  6. Marie-Claire Ponthoreau, Droit(s) constitutionnel(s) comparé(s), 2nd ed. (Éditions Economica, 2021) (addressing recurring questions of comparative legal studies).
  7. Diletta Tega, The Italian Constitutional Court in its Context: A Narrative, 17 European Constitutional Law Review (2021) (discussing how the Italian Constitutional Court adapts its case law and doctrines to the legal and political contexts).
  8. Ioanna Tourkochoriti, Freedom of Expression. The Revolutionary Roots of American and French Legal Thoughts (Cambridge University Press, 2021) (studying France and the United States from a comparative perspective and proposing a novel theory of how the limits of freedom of expression are informed by different revolutionary experiences as well as constitutional and political arrangements).
  9. Raymond Wacks, The Rule of Law Under Fire? (Hart, 2021) (examining the philosophical roots of the rule of law, its modern interpretation, and the present dangers to its continuing vitality)
  10. Po Jen Yap and Chien-Chih Lin, Constitutional Convergence in East Asia (Cambridge University Press, 2021) (investigating the constitutional convergence of three East Asian jurisdictions in the rulings of the Constitutional Court of Taiwan, the Constitutional Court of Korea, and the Hong Kong Court of Final Appeal)

Calls for Papers and Announcements

  1. The World Congress of Constitutional Law will take place in Johannesburg on December 5-9, 2022. The deadline to send paper proposals is December 31, 2022.
  2. A call for papers is open for the Annual Conference of the Socio-Legal Studies Association. The deadline is January 7, 2022.
  3. The second Decolonial Comparative Law Workshop will take place at the University of Oxford, organized by the British Academy Global Professorship and the Max Planck Institute for Comparative and Private International Law. Papers can be submitted no later than February 9, 2022.
  4. The 29th Annual Conference of the Australian and New Zealand Society of International Law will take place in Canberra and online from June 30 to July 2, 2022. The deadline to submit panel and paper proposals is February 21, 2022.
  5. The UK-IVR Annual Conference will take place online on June 10-12, 2022. The deadline to submit workshop proposals is February 28, 2022. The deadline to submit paper proposals is March 15, 2022.

Elsewhere Online

  1. Cathleen Berg, The External Representation of the European Union in the International Maritime Organization: A Question of Labelling rather than of EU Competence, EU Law Analysis
  2. Lorenzo Cotula, The Shifting Contours of Property: ‘Social Function’ in the Neoliberal Era, Transformative Private Law Blog
  3. Department of Constitutional Law, University of Debrecen (Head of Department: Péter Sólyom) and Tamas Gyorfi, Professor at the University of Aberdeen, HunConCourt database
  4. Varun Kasthuri, India’s Dynamic Constitution, Verfassungsblog
  5. Svetlana Yakovleva, GDPR Transfer Rules vs Rules on Territorial Scope: A Critical Reflection on Recent EDPB Guidelines from both EU and International Trade Law Perspectives, European Law Blog
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Published on December 14, 2021
Author:          Filed under: Developments
 

Leaving the Rule of Law Behind: How Slovakia is fighting against COVID-19 without Legality

Tomáš Ľalík, Associate Professor of Constitutional Law, Comenius University, Bratislava

The following piece describes a legal regime limiting fundamental rights and freedoms in Slovakia during the fight against pandemic with the emphasis on the rule of law and legality. In particular, I analyse the system of rules put in place that touch on human rights. Next, I underscore the total absence of judicial (or external) review of the acts by directly affected individuals. In the end, I argue that disregard of the rule of law by the Slovak authorities could delegitimize the effort to rage a war against the pandemic. 

Rule by the Chief Hygienist

In general, in Slovakia there are three types of acts that limit human rights during the pandemic outside the state of emergency: Act on Public Health, internal resolutions of the Government and measures by the Public Health Authority (PHA).

The system works in the following way. The most important legal document has been the so-called Covid automat. It contains methods and methodologies of various epidemiological criteria and regulates Slovak regions into different legal regimes based on data. The problem with the Covid automat is that it is in the form of internal resolution adopted by the Government and as such does not have any legal effect outside the Government. Despite this, in the operative part of the resolution it recommends the Chief Hygienist (head of the PHA) to issue measures that would transform results from the Covid automat into practice. Although the Chief Hygienist is not formally required to obey, in practice he follows “advice” and on weekly basis issues the measure. He cannot refuse since he is subordinated to the Minister of Health and subject to dismissal at any time.

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Published on December 9, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


–Susan Achury, Visiting Lecturer at 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 iconnecteditors@gmail.com.

Developments in Constitutional Court

  1. The Brazilian Supreme Court opened investigation against President Bolsonaro for the dissemination of false news.
  2. The Mexican Supreme Court of Justice of the Nation declared unconstitutional the prohibition of the cultivation of cannabis for non-medical or research purposes, authorizing its use for industrial purposes.
  3. Ecuador’s Constitutional Court stop a mining project in a protective forest by declaring the “violation of the rights of nature”
  4. The Constitutional Court upheld the law that declared that sexual violence against minors is imprescriptible.
  5. The Federal German Constitutional Court declared ‘COVID-19 Emergency Brake’ constitutional.
  6. The Indonesian Constitutional Court ordered government And House of Representatives to rectify job creation law within two years.
  7. The Turkish Constitutional Court declared that public officials are liable for not preventing male violence.

In the News

  1. Biden administration to restart Trump-era ‘Remain in Mexico’ policy
  2. Europe Court to issue infringement proceedings against Turkey for failure to release philanthropist
  3. The Brazilian Supreme Court suspended suspends law that prohibits the teaching of inclusive or neutral language in public or private schools.
  4. The Colombian Supreme Court approved extradition to the United States of a member of the defunct FARC.
  5. Amnesty International in Argentina asked president, Alberto Fernández for a women magistrate to be nominated and appointed to the Supreme Court, in accordance with the gender balance required by law.
  6. Barbados has become a republic, ending with the British rule.
  7. Portugal’s president vetoes euthanasia bill, Parliament will have to return to the debate after January elections.

New Scholarship

  1. Christina L. Boyd, Michael J. Nelson, Ian Ostrander, and Ethan D. Boldt, The Politics of Federal Prosecution, (examining how prosecutor in the US are politically responsive)
  2. DJ Galligan, The Courts and the People: Friend or Foe? (examining the case for judicial independence, whether judicial independence under threat, and whether & how judicial independence can be defended and protected) **Special Discount Code** Use the code UG8 for 20% off when ordering directly via www.bloomsbury.com
  3. Svitlana Chernykh and Zachary Elkins, How Constitutional Drafters Use Comparative Evidence, (analyzing the extent and kind of references to foreign countries and political institutions in the constitutional making process in Brazil and Ukraine)
  4. Andrew Arato, Jean L. Cohen, Populism and Civil Society The Challenge to Constitutional Democracy, (examining the challenge of populism to democracy in in terms of its four main organizational forms: socio-political movement, political party, government, and regime).
  5. Mark S. Berlin , Does Criminalizing Torture Deter Police Torture?, (arguing that criminalization of torture at the national level is more likely to deter police torture than these other forms of legal prohibition).
  6. Gabriel L. Negretto, Tinkering with executive term limits: partisan imbalances and institutional legacies in Latin America, (arguing that reforms relaxing executive term limits depend on the relative partisan power of presidents and on inherited institutional constraints)
  7. Hubert Smekal, Jaroslav Benák, and Ladislav Vyhnánek,  Through selective activism towards greater resilience: the Czech Constitutional Court’s interventions into high politics in the age of populism, (examining the Czech case to argue that resilient constitutional courts may act as one of the key safe guards against  illiberal  populism).
  8. Chase Foster, Varieties of neoliberalism: courts, competition paradigms and the Atlantic divide in anti-trust, (analyzing how courts can contribute to both ideational continuity and change in economic policy).

Calls for Papers and Announcements

  1. The Westminster Law School (United Kingdom) and the University of Jyväskylä (Finland) has issued a call for papers for the conference Justice for Atrocities: Dialogues and Encounters between Latin America and Europe. Deadline January 7, 2022.
  2. Michigan Law School 2022 Junior Scholars Conference April 22-23, 2022 has invited junior scholars to attend the 8th Annual Junior Scholars Conference, which will take place in-person on April 22-23, 2022, in Ann Arbor, Michigan. Deadline, January 10, 2022.
  3. The Socio-Legal Studies Association is inviting submissions for its upcoming annual conference. Deadline January 7, 2022.
  4. Columbia Law School, Georgetown University Law School, Stanford Law School, UCLA School of Law, the University of Pennsylvania, and the University of Southern California Center for Law, History, and Culture invite submissions for the 21st meeting of the Law and Humanities Junior Scholars Workshop. Deadline December 15, 2021.
  5. The Urban Law Center at Fordham Law School and the Peter A. Allard School of Law at University of British Columbia (UBC) has announced a call for participation in the 8th Annual International and Comparative Urban Law Conference. Deadline January 14, 2022.
  6. The International Journal for the Semiotics of Law has issued a call for papers for the Special issue, Towards digitization of cultural practices and contents Issues, limits and legal tools.
  7. The Barry ACS Student Chapter & Law Review and the Texas A&M University School of Law have extended the Call for Papers for the 7th Annual Constitutional Law Scholars Forum. The Call invites scholarly proposals at any stage before publication on the following topics: Constitutional Law, Ethics, or Technology in Law Practice. Deadline January 1, 2022.
  8. The Military Justice in the Modern Era Conference is inviting proposals for papers. Deadline January 31, 2022.

Elsewhere Online

  1. Wojciech Sadurski, A Blatant Attack on Free Media, Verfassungsblog.
  2. Anne Sanders and Elisabeth Faltinat , Independent Selection of Judges via Competence Evaluation and Lot, Verfassungsblog.
  3. Cassie Maas, US federal judge blocks Texas social media censorship law, JURIST.
  4. Mark R. Brown, The Legality of Biden’s OSHA Vaccine Mandate for American Workers, JURIST.
  5. Octávio Luiz Motta Ferraz, Crime and (lack of) Punishment in Brazil’s Pandemic Response, Lex-Atlas: Covid-19
  6. Hans-Georg Betz, How anti-Corona measures have revived the populist right, Center for Analysis of the Radical Right.
  7. Katie Lines, 18 months of COVID-19 legislation in England: a rule of law analysis, The Constitution Unit Blog.
  8. Daniel Vásquez, La victoria de Xiomara Castro en la Honduras de la democracia oligárquica, Nueva Sociedad
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Published on December 6, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


–Boldizsár Szentgáli-Tóth, Research Fellow at Centre for Social Sciences, Institute for Legal Studies – Centre of Excellence (Budapest); researcher at National University of Public Services (Budapest)


In this weekly feature, I-CONnect publish a curate 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 Polish Constitutional Tribunal ruled that the European Court of Human rights cannot question the legitimacy of its judges.
  2. The Supreme Court of India observed that the equivalence of prescribed qualifications with any other given qualification could not be decided through judicial review.
  3. The Constitutional Court of Colombia has overturned a lower court’s decision that forced a Colombian influencer to take down a video in which she expressed her Christian belief that marriage is between a man and a woman.
  4. Indonesia’s Constitutional Court ordered the government to amend parts of a controversial job creation law within two years, describing it as conditionally unconstitutional by undermining workers’ rights and environmental protection.
  5. South Dakota’s Supreme Court ruled against the legalisation of recreational marijuana
  6. The British Colombia Court of Appeal and British Colombia Supreme Court have decided to eliminate the practice of addressing justices as “my lady”, “my lord”, “your ladyship”, or “your lordship”.

 In the News

  1. The Venice Commission issued an urgent opinion on the recent Serbian constitutional amendments concerning the judiciary.
  2. The Parliament of Jordan opened the debate on constitutional changes concerning the electoral system and the country’s political structure.
  3. The Minister of Justice of Algeria stated that the installation of the Constitutional Court of Algeria was a significant step to building stable institutions and a consolidated democracy in the country.
  4. The Parliament of New Zealand went into urgency today to rush through legislation that will allow businesses and groups to introduce vaccination mandates among their staff ahead of the new Covid-19 Protection Framework starting in December, which raised severe constitutional concerns.
  5. An agreement was concluded in Sudan after massive protests to reinstate the former prime minister, release political prisoners, and restore the transition to civilian rule nearly a month after the military coup.
  6. Australia sent police and military forces to the Solomon Islands due to the spread of protests to maintain stability and normal constitutional processes in the country.
  7. The Government of South Africa approved a bill to be submitted to the Parliament concerning proposed amendments of the electoral system to allow independent candidates to run.
  8. The head of the Belarusian presidential administration identified key principles that should be incorporated into constitutional amendments currently being drafted.
  9. Auctioneers revealed the buyer’s identity of an extremely rare original copy of the US Constitution for a record $43 million – a billionaire who will loan it to a museum to maximise the document’s viewing.

New Scholarship

  1. Karlo Tuori, Properties of Law: Modern Law and After (2021) (critically examining modern state law)
  2. Ioanna Tourkochoriti, Freedom of Expression The Revolutionary Roots of American and French Legal Thought (2021) (exploring the impact of divergent revolutionary traditions in France and the United States on the freedom of expression)
  3. Brian Christopher Jones, Democracy and Rule of Law in China’s Shadow (2021) (providing detailed insight into some of the most contentious events occurring in jurisdictions operating within China’s vast shadow)
  4. Monika Florczak-Wątor (eds): Judicial Law-Making in European Constitutional Courts. Routledge, December (2021) (analysing the specificity of the law-making activity of European constitutional courts)
  5. Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (2021) (examining how the idea and practice of unconstitutional constitutional amendment are shaped by, and inform, constitutional politics across Asia)
  6. Zaid Al-Ali, Arab Constitutionalism: The Coming Revolution (2021) (critically examining the constitution-making and constitutional change in the Arab region after 2011)
  7. Berihun Adugna Gebeye, A Theory of African Constitutionalism (2021) (theorising the development and transformation of African constitutionalism from pre-colonial times to the present with the attendant constitutional designs and practices)

Calls for Papers and Announcements

  1. ICON-S CEE Chapter invites interested participants to join an online roundtable talk on the topic of the book Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021) by Mark Tushnet and Bojan Bugaric, on 9 December 2021.
  2. 7th Constitutional Law Scholars Forum invites submission for the conference held in Orlando, the USA, on 25 February 2022. The deadline for submissions of abstracts is 1 December 2021.
  3. The Law Unit of ATINER will hold its 19th Annual International Conference on Law, 11-14 July 2022, Athens, Greece, sponsored by the Athens Journal of Law. The deadline for submission of abstracts is 13 December 2021.
  4. Constitutional Law Review invites submissions for its second issue in 2021. The deadline for submissions is 30 December 2021.
  5. The editors are pleased to invite scholars to contribute a proposal for a new book on “Integrating Doctrine & Diversity: Inclusion and Equity Beyond the First Year,” published by Carolina Academic Press. The deadline for submissions is 1 December 2021.
  6. The Oklahoma Law Review is accepting tax-themed submissions for publication in its upcoming spring 2022 issue. The deadline for abstracts is 7 January 2022.
  7. The San Diego Law Review (SDLR) invites submissions for its 2022 Privacy Symposium. The deadline for submission is 15 March 2022.

Elsewhere Online

  1. Giacomo Orsini, Jean-Baptiste Farcy, Sarah Smit & Laura Merla, Security-vested Institutional Racism: the Case of Migration to Belgium, Verfassungsblog
  2. Mohsin Alam Bhat, Irregularizing Citizenship in India, Verfassungsblog
  3. Charles Kaiser, Justice on the Brink review: how the religious right took the supreme court, The Guardian
  4. Ronan Cormacain, Blue-eyed Babies, Amnesties, Sovereignty of Parliament and the Rule of Law: The Northern Ireland Legacy Proposals, UK Constitutional Law Association
  5. Arvind Kurian Abraham, Constitutions and Housework, IACL-AIDC Blog
  6. Paul Daly, The Kerr Report, 50 Years On: An Overseas Overview, AUSPUBLAW
  7. Imani Henrick, Bitebo Gogo, Ogah Peter Ejegwoya & Ayowole Olotupa-Adetona, The role of African governments in the implementation of the Revised Declaration on freedom of expression online in Africa, AfricLaw
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Published on November 29, 2021
Author:          Filed under: Developments