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I·CONnect

Blog of the International Journal of Constitutional Law

Compulsory Vaccination in Brazil: Anticipating the COVID-19 Vaccine Struggles

—Bruno Santos Cunha, City Attorney, Recife, Brazil

In the last week of August 2020, the Brazilian Supreme Court had a peculiar case on its docket: the State of São Paulo was suing the parents of a 5 year-old child in order to compel them to regularize their child’s vaccination according to the mandatory vaccine calendar applicable to children nationwide. On this occasion – and following the Court procedures regarding its appellate jurisdiction in constitutional cases – the Supreme Court was only called upon to declare whether the case, as decided by the São Paulo Appellate Court, provided a clear constitutional challenge able to trigger Supreme Court jurisdiction. In a unanimous decision, the Brazilian Supreme Court said that it is within its constitutional scope to judge whether parents are compelled to follow mandatory vaccination schemes regardless of their ideological, religious, moral or existential beliefs. After accepting to judge the case on constitutional grounds (STF – ARE 1267879 – Tema 1103), the Court is now ready to schedule its judgment on the merits in the near future.

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Published on September 30, 2020
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Special Announcement | New Additions to the I-CONnect Team

—Richard Albert, The University of Texas at Austin; Tom Ginsburg, The University of Chicago; David Landau, Florida State University

Next month, on October 12, I-CONnect turns eight years old. It has been quite a journey thus far. And we have evolved considerably in that time, both in our content and in our contributors.

But we have kept the editorial leadership unchanged since the very beginning. Until now.

Today we are thrilled to announce that Antonia Baraggia and Jaclyn Neo have joined us as co-editors here at I-CONnect. We encourage you to contact them with your ideas and suggestions, just as you would have earlier contacted any of the three of us. And please also congratulate them on their new roles in our global community of public law!

Antonia Baraggia is an Assistant Professor of Comparative Public Law at the University of Milan in the Department of Italian and Supranational Public Law. She serves as Chair of the Executive Board of the Younger Comparativists Committee (YCC) in the American Society of Comparative Law. She has been a Visiting Fellow at Fordham University, McGill University, and at the Max Planck Institute for the Study of Religious and Ethnic Diversity in Göttingen. The winner of competitive research grants and academic scholarships, her research focuses on global constitutional law, constitutionalism in times of crisis, socio-economic rights, and federalism in comparative perspective. She has authored three books and several publications in Italian and English.
Jaclyn Neo is an Associate Professor of Law at the National University of Singapore (NUS) and the Director of the NUS Centre for Asian Legal Studies. Her work aims to foreground Asian jurisdictions in comparative constitutional law. A graduate of NUS Faculty of Law and Yale Law School, Jaclyn is a recipient of multiple academic scholarships, competitive research grants, and research awards. She has published in leading journals in her field, edited/co-edited five books, and served as guest editor for multiple special issues. Her work has been cited by the courts in Singapore and India. She is an elected Council Member of ICON-S and founding co-chair of ICON-S (Singapore). Jaclyn served as an ICONnect blog columnist in 2018.

We take this occasion to announce that we have a new contact email for submissions, inquiries, and proposals: iconnecteditors@gmail.com. Communications sent to any other email address will not be received.

And we never miss an occasion to thank our readers for continuing to support this Blog. Thank you. It is your Blog, and we invite you to join us with your contributions and suggestions to help keep this Blog a central resource for the field of public law.

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Published on September 24, 2020
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The Constitutional Reform Referendum in Chile: Balancing Democracy and Elite Accommodation

—Alexander Hudson, Max Planck Institute for the Study of Religious and Ethnic Diversity, and Rodolfo Disi Pavlic, Temuco Catholic University

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

Next month, citizens of Chile will go to the polls to decide whether or not to draft a new constitution, and on the form of the assembly that would draft that new constitution next year. The two options for the potential constitutional drafting body involve some tradeoffs between enhancing the democratic bona fides of the drafting body, and ensuring political elite buy-in. Specifically, one option would create a specially elected constituent assembly (following the rules of the normal legislative elections), while the other would mix its membership between current members of the legislature and citizen-participants elected for this specific purpose. Both Chile’s recent past experience with constitutional reform (the failed process of 2016-2018) and comparative examples suggest that some caution would be wise. We argue that successful constitution-making processes must find a delicate balance between empowering the people and ensuring that political elites will support the new constitution. In this respect, the failed constitution-making process in Iceland may be especially informative.

The background to the current constitution-making process is the wave of protests that swept over Chile from October 2019 to March 2020. The nominal triggering event was an increase in the cost of transit tickets in Santiago, but in reality the protests addressed concerns about increasingly apparent income inequality and other economic issues that had been rising in importance for many Chileans for some years. The constitution itself is a relic from the Pinochet dictatorship, and its supermajority requirements in certain areas have long been understood to present unreasonable impediments to policy making. The constitution is thus centrally implicated in the current political struggles[1] and the promise in November 2019 to consult the people about constitutional reform was an important step in placating some of the protesters’ concerns.[2] Certainly, a constitution cannot on its own resolve these deep economic problems. Yet the political commitments toward change could be given expression in a new constitution.

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Published on September 23, 2020
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What’s New in Public Law

–Pedro Arcain Riccetto, Postdoctoral Fellow at the University of Oxford.

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. Supreme Court of Spain to decide whether to remove the regional president of Catalonia Quim Torra from office for breaching electoral law.
  2. Constitutional Court of Peru to rule about presidential vacancy on preliminary grounds next Thursday.
  3. UK Supreme Court to hear an appeal by Nigerian farmers and fishers to pursue claims in England against Shell over spills in the Niger Delta.
  4. The newly-elected Chief Justice of the Supreme Court of Brazil, Luiz Fux, published the cases to be ruled by the Court until the end of the year, including indigenous rights, gender education in public schools and royalties on oil exploration and production.
  5. The Supreme Court of India decided to halt further telecast of a TV show vilifying Muslim minorities

In the News

  1. US Supreme Court Justice Ruth Bader Ginsburg dies aged 87.
  2. Barbados plans to become a republic by November 2021.
  3. Minister of Justice Dawda Jallow presents the Draft Constitution of The Gambia to National Assembly.
  4. The advocate general for Scotland, Lord Keen, quits over Brexit bill row.
  5. Mexican President Andres Manuel Lopes Obrador asks the Senate for approval to place a national referendum to authorize prosecution of former presidents for crimes allegedly committed in office.
  6. Nigeria extends deadline for public proposals on constitutional change.

New Scholarship

  1. David Pozen and Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise (2020) American Journal of International Law (forthcoming), Columbia Public Law Research Paper No. 14-664 (seeking to define the phenomenon of executive underreach, with special reference to the COVID-19 crisis, to outline ways in which it may compromise constitutional governance and the international legal order, and to suggest a partial remedy).
  2. Shauhin Talesh, Elizabeth Mertz and Heinz Klug, Modern Legal Realism: Paving the Way for Theoretically-Informed Empirical Research in the Legal Academy (forthcoming 2021), UC Irvine School of Law Research Paper No. 2020-56 (showing the distinctive qualities of New Legal Realism and describing where it stands around its fifteenth anniversary).
  3. Sergio Verdugo, How Can Judges Challenge Dictators and Get Away With It? (2020), Working paper (claiming that it is possible for courts, in specific high-stake scenarios, to preserve or promote democracy without facing political backlash).
  4. Pippa Norris, Closed Minds? Is a ‘Cancel Culture’ Stifling Academic Freedom and Intellectual Debate in Political Science? (2020), Harvard Kennedy School Working Paper No 20-025 (outlining propositions arising from the ‘cancel culture’ thesis and describing the sources of empirical survey evidence and measures used to test these claims within the discipline of political science).
  5. Jena McGill and Amy Salyzyn, Judging by Numbers: How Will Judicial Analytics Impact the Justice System and Its Stakeholders? (forthcoming 2021), 44:1, Dalhousie Law Journal, Ottawa Faculty of Law Working Paper No. 2020-13 (analyzing the potential benefits of mainstreamed judicial analytics is significantly increased transparency into the work of judging).
  6. Pietro Faraguna, Verbatim Identity (2020), Max Planck Encyclopedia of Comparative Constitutional Law (exploring the concept of identity from the perspective of comparative constitutional law and constitutional theory).

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism welcomes submission for “The Global Summit,” to be held on January 12-16, 2021. The first of its kind summit will be both multilingual and multi-time zone, and it offers an opportunity for scholars of all ranks around the world to exchange ideas on constitutionalism. The deadline to submit a proposal for a paper or a fully-formed panel is 8 pm on October 1, 2020.
  2. The Eurac Research Institute for Comparative Federalism invites applications for the Winter School on Federalism and Governance. Applications may be submitted by October 18, 2020.
  3. The International Forum on the Future of Constitutionalism invites all to register for the virtual roundtable on “The Living Presidency” on October 9, 2020. This roundtable will feature Sanford Levinson, Amanda Tyler and Richard Albert in conversation with Saikrishna Bangalore Prakash, author of “The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers (2020, Harvard University Press).
  4. The Colombian Constitutional Court invites all to the “XII Conferencia Iberoamericana de Justicia Constitucional: Democracia y Derechos Fundamentales en los Estados de Excepción”, to be held online on September 24-25, 2020.
  5. The Center for Comparative and Public Law at the University of Hong Kong organizes the Zoom Webinar Book Talk – Constitutional Revolution (Yale University Press, 2020) with the authors, Gary Jeffrey Jacobsohn and Yaniv Roznai, on October 7, 2020.
  6. The Utrecht School of Law is seeking to appoint a PhD researcher in law for four years under the framework of the research platform ‘Empirical Research into Institutions for Conflict Resolution’ (ERI) and the Montaigne Center for Rule of Law and Administration of Justice. The deadline for applications is October 10, 2020.

Elsewhere Online

  1. Geoffrey Stone, The Most Important Woman Lawyer in the History of the Republic, Politico.
  2. Kenneth Armstrong, Can the UK breach the Withdrawal Agreement and get away with it? – The United Kingdom Internal Market Bill, UK Constitutional Law Association Blog.
  3. Adriano Dirri, Independence referendum was neither the best choice nor the solution to Kurdish issue in Iraq, Kurd Press.
  4. Mark Tushnet, The two sides to a Supreme Court nomination, Balkinization.
  5. Shama Abbasi, India: Sharma v. Sharma – Constitutional Equality for Hindu Women?, Oxford Human Rights Blog.
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Published on September 21, 2020
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Gender and the Law of the Sea

[Editor’s Note: ICONnect is publishing a series of book reviews that recently ran in ICON (Volume 18, Issue 2: July 2020) on “Law and Gender in the Literature.”]

Irini Papanicolopulu ed. Gender and the Law of the Sea.  Brill Nijhoff,  2019 (hardback). Pp. xxii+ 368. € 138.00. ISBN: 9789004375161.

Isabel Lischewski

International Journal of Constitutional Law, Volume 18, Issue 2, July 2020, Pages 651–654, https://doi.org/10.1093/icon/moaa042

https://academic.oup.com/icon/article/18/2/651/5880171

Almost thirty years have passed since the seminal “Feminist Approaches to International Law” by Hilary Charlesworth, Christine Chinkin, and Shelley Wright appeared in the American Journal of International Law,[1] and these years have seen the rapid expansion of the field of feminist international legal studies.[2] Scholars have applied a feminist lens to a range of international legal issues, but have overall directed most of their attention towards human rights law and related subjects. There still seems to be something of a tacit understanding that most areas of classic state-centered international law are not accessible to a feminist analysis, or that the result of such an analysis is evident beforehand: namely, that the core pillars of the inter-state legal order are constructed in a completely gender-neutral way.

It is thus no small undertaking to come forward with a collection whose title brings together the words “gender” and “law of the sea,” be it only because of the gut reaction most international lawyers will have towards the combination. The law of the sea, with its rules regarding coastal delineation, fisheries, and flag states, setting the stage for cases such as Lotus and North Sea Continental Shelf, is viewed as probably the single most technical and functional area of international law, thus implying, for most, gender neutrality. However, in the same breath, it also carries the strongest implication of “traditional,” Hemingwayesk masculinity and of a world where women are not.[3] It is this second assumption that puts the first one—that the law of the sea is indeed neutral—under some intellectual strain.

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Published on September 20, 2020
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Symposium | Part III | Reducing the Size of the Italian Parliament: The Wrong Means to the Right End

[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the fourth entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]

—Francesco Palermo, Professor of Comparative Public Law, University of Verona and Head of the Institute for Comparative Federalism, Eurac Research, Bolzano/Bozen.

There are good reasons both in support and against the constitutional reform which curtails more than one-third of the members of the Italian bicameral parliament. The more convincing arguments bolstering the approval of the reform are in essence two. First, the constitutional amendment is limited in scope, and draws lessons from the previous, comprehensive reforms of the parliamentary system voted by parliament in 2006 and 2016 respectively, but both rejected by popular vote. These proposals have been considered too ambitious, while the current one is constitutionally humble yet symbolically significant, and might reduce the perceived gap between society and political representation, as this is what most people allegedly want. Second, supporters of the reform maintain that it might set in motion further and deeper constitutional changes.

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Published on September 18, 2020
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Symposium | Part II | Reducing the Size of the Italian Parliament: Why I Will Be Voting No

[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the third entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]

—Francesca Rosa, Professor of Comparative Public Law, University of Foggia.

On September 20th and 21st Italian voters will decide whether to confirm the reduction in the number of members of the Italian Parliament: during the current legislature the Parliament passed a constitutional amendment cutting the number of deputies to 400 (from 630) and the number of senators to 200 (from 315). At the same time, the maximum number of life senators is set at 5 (articles 56, 57 and 59 of the Constitution). The root of this constitutional reform is twofold. The first is political and it is linked to the rise of the Five Star Movement and its participation to the government. After March 2018 elections the Five Star Movement was the relative majority party in both Houses of Parliament and consequently became the main ally of the two coalition governments led by Giuseppe Conte since June 2018: Government Conte I (June 2018 – September 2019) in coalition with the Northern League, and Government Conte II (September 2019 to date) in coalition with Partito Democratico (the Italian Democratic Party)[1].

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Published on September 17, 2020
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Symposium | Part I | Reducing the Size of the Italian Parliament: A Limited Constitutional Reform with No Risks and Some Benefits

[Editor’s Note: I-CONnect is pleased to feature a four-part symposium on the upcoming Italian constitutional referendum on the reduction of members of the Parliament. This is the second entry of the symposium, which was kindly organized by Antonia Baraggia. Her introduction is available here.]

Carlo Fusaro, Professor of Comparative Public Law, University of Florence.

After voters turned down two comprehensive attempts to revise part II of the Italian Constitution, in 2006 (the project had been passed by the center-right coalition led by Mr. Berlusconi) as well as in 2016 (the project had been passed by the center-left coalition led by Mr. Renzi), the political parties of the Italian Parliament have unanimously approved a very simple and limited amendment which reduces the members of the Chamber of deputies from 630 to 400 and the elected members of the Senate from 315 to 200.

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Published on September 16, 2020
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Silwad Municipality v. The Knesset: The Invalidation of the Settlement Regularization Law and its Aftermath

—Tamar Hostovsky-Brandes, Ono Academic College Faculty of Law

Introduction

On June 9, 2020, the Israeli Supreme Court delivered its decision in the case of Silwad Municipality v. The Knesset, regarding the Settlement Regularization Law (the “Law”), enacted by the Knesset in 2017. The Court invalidated the Law by an 8 to 1 majority, determining that it violated the constitutional rights to property, dignity and equality, protected by Basic Law: Human Dignity and Liberty, and did not meet the requirements of the Basic Law’s limitation clause.

The Enactment and Content of the Law

The Law was enacted in 2017, following a political crisis that emerged after the Supreme Court ordered the evacuation of Amona, a Jewish settlement built on private Palestinian land. The ruling in Amona was consistent with the Court’s previous case law, in which it declared that while the general question of the legality of the settlements was non-justiciable, establishment of settlements that involved violation of private property rights is subject to judicial review.

The Law establishes a mechanism for expropriation of private Palestinian land on which settlements were built, in exchange for compensation. It determines that the state will take hold of such land and allocate the rights to hold and use it to the Israeli settlers that reside on it. The mechanism is applied to settlements established in “good faith,” that is, without the settlers knowing that the land was privately owned, or with government assistance, defined broadly.  

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Published on September 15, 2020
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What’s New in Public Law

–Boldizsár-Szentgáli Tóth, Research Fellow at the Hungarian Academy of Sciences and the Etvos Loránd University

Developments in Constitutional Courts

  1. The Supreme Court of India agreed to examine if religious places of all faiths can be reopened.
  2. The Supreme Court of Latvia organized a public survey on the issues of the rule of law. Kore than 1000 respondents from all over Latvia participated in the process and called for more clearly defined laws.
  3. Representatives of the Constitutional Court of Ukraine took part in the discussion on issues of restriction of human rights and freedoms in health emergencies.
  4. The Constitutional Court of Turkey ruled that preventing those who were dismissed from public service from bar registration violated the principle of legality.

In the News

  1. The Supreme Court of Arizona ruled that backers of voter initiatives must collect qualifying signatures in person even during a pandemic because the Arizona Constitution requires it.
  2. The Arizona Supreme Court ruled that a state law that creates harsher sentences for people who threaten others only because they associate with or belong to a gang is unconstitutional.
  3. Alaska Supreme Court struck down that authorized subject-to-appropriation bonds to pay outstanding cashable oil and gas tax credits that were issued during a tax credit program that ended in 2017.
  4. British Columbia Supreme Court decided against legalizing private health care following a decade-long battle.
  5. The President of Albania set next April as the date for the country’s next parliamentary election, a critical condition for starting negotiations to join the European Union.
  6. The Government of Sri Lanka proposed increased presidential powers. Protests were held in the capital against the pro-president constitutional amendment.
  7. Nevada will hold a referendum to repeal the same-sex marriage ban from the state constitution.
  8. The President of Guinea seeks a third term despite opposition.
  9. Algeria parliament adopted constitutional reforms that will bring “radical change,” and broad debate on a complete revision of the Constitution will start in September.
  10. The President of Belarus addressed the possibility of holding a debate on early presidential elections, stating that such an election should go hand in hand with the planned amendment of the Constitution.
  11. A constitutional amendment motion failed in Thailand due to defections from the Democrat voting bloc.
  12. Expert discussions will be held in Ukraine concerning a constitutional amendment on decentralisation.

New Scholarship

  1. Richard Albert, Derek O’Brien, and Se-shauna Wheatle (eds), The Oxford Handbook of Caribbean Constitutions (2020) (providing a first-of-its-kind resource studying the operation of constitutional law across the entire Caribbean, embracing the linguistic, political, and cultural diversity of the region)
  2. Ulrich Stelkens and Agnė Andrijauskaitė (eds), Good Administration and the Council of Europe: Law, Principles, and Effectiveness (2020) (analyzing the sources and functions of European general principles of good administration)
  3. Ran Hirschl, City, State Constitutionalism and the Megacity (2020) (providing detailed, first-of-its-kind, comparative analysis of the constitutional status of cities across time and place)
  4. Bede Harrys, Constitutional Reform as a Remedy for Political Disenchantment in Australia: The Discussion We Need (2020) (examining the issues of public opinion on government conduct in Australia and the need for constitutional reform)
  5. Julius Yam, Approaching the Legitimacy Paradox in Hong Kong: Lessons for Hybrid Regime Courts, Law and Social Inquiry (2020) (drawing on the experiences of the Hong Kong courts to understand better the legitimacy paradox of court decision-making in hybrid regimes)

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism welcomes submission for “The Global Summit,” to be held on January 12-16, 2021. The first of its kind summit will be both multilingual and multi-time zone, and it offers an opportunity for all-rank of scholars from all over the world to exchange ideas on all areas of constitutionalism. The deadline to submit a proposal for a paper or a fully-formed panel is 8 pm on October 1, 2020.
  2. The International Forum on the Future of Constitutionalism organizes a virtual roundtable on “Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court,” to be held on September 18.
  3. Registration is now open for an online seminar on “Democracy in our Digital Age,” featuring Jack Balkin, Kate Klonick, and Vivek Krishnamurthy, organized by the International Forum on the Future of Constitutionalism. The seminar will take place on September 25.
  4. The ICON-S Singapore Chapter organizes an online symposium on the subject “(UN)GENDERING PUBLIC LAW IN ASIA?,” to be held on September 23, 2020.
  5. Drake University Constitutional Law Center announced the 2020 Constitution Day Speaker, which will be Stephan Gardbaum. The Constitution Day Lecture will take place online, on the subject “The Counter-Playbook: Resisting the Populist Assault on Separation of Powers,” on September 17, 2020.
  6. Fifth Annual Melbourne Forum on Constitution-building in Asia and the Pacific is taking place online, every Thursday in September 2020.
  7. The Minerva Center for The Rule of Law Under Extreme Conditions invites submissions for the 4th Young Researchers Workshop on Terrorism and Belligerency on the topic of Human Enhancement and Advanced Technologies in Terrorism and Belligerencies. The workshop will take place from June 6-18, 2021. The deadline to submit an abstract is November 19, 2020.
  8. The Age of Human Rights Journal (TAHRJ) invites submissions for its June 2021 publication on the topic of Human Rights from Different Approaches. The deadline for submissions is February 1, 2021.
  9. The International Journal for the Semiotics of Law (IJSL) and Comparative Legilinguistics invite submissions on the topic “COVID-19 Infodemic – Between Law, Ethics and Fake News.” There will be two special issues for the International Journal for the Semiotics of Law and one special issue for the Comparative Legilinguistics journal. The deadline to submit an abstract is February 10, 2021.

Elsewhere Online

  1. Michael Keating, Back to the Unitary State?, Centre on Constitutional Change
  2. The Nixon pardon in constitutional retrospect, Constitution Center
  3. Jan Komárek, Political Economy in the European Constitutional Imaginary – Moving beyond Fiesole, Verfassungsblog
  4. Mathias Goldmann, Integrative Liberalism: A New Paradigm for the Law of Political Economy?, Verfassungsblog
  5. Joana Mendes, The Contingency of Governance in the EU, Verfassungsblog
  6. Cesare Pinelli, What Comes After Neoliberalism?, Verfassungsblog
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Published on September 15, 2020
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