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I·CONnect

Blog of the International Journal of Constitutional Law

Automation of Public Services and Digital Exclusion

Sofia Ranchordas, University of Groningen

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

If you are reading this blogpost, you most certainly have the required digital skills to engage with your national or local digital government services. You can fill in online your tax return forms, use social media to communicate with local authorities, help your children apply for a new school or university, and challenge an automated administrative decision (e.g., a speeding fine). However, for millions of citizens throughout the world, engaging with digital government is far from obvious. This blogpost discusses the problems of digital inequality and digital exclusion in the context of the digitization and automation of public services.

Drawing on a review of interdisciplinary literature, I identify two causes of digital inequality: the emergence of a new and complex form of digital divide and limited digital literacy. While both topics have been thoroughly discussed in the field of media studies, the legal implications of digital inequality remain underestimated by lawyers and policymakers. At a time when several governments (e.g., the Netherlands, Estonia) are trying to eliminate traditional offline services or shift to online-only or online-by-default, it is important to inquire whether all citizens will be able to exercise their rights adequately in a digital context. Moreover, if the adequate exercise of citizens’ rights is put at stake due to the complexity of digital government, it is worth inquiring whether all areas of government should always be online by default and whether citizens should have the right to meaningful human contact when interacting with their national or local public authorities, as recently suggested by the Dutch Council of State.

In this blogpost, I also introduce two solutions to the problem of digital inequality: a broader implementation of a trial-and-error approach to digital government (e.g., the right to make a mistake) and the expansion of experiential learning programs on technology and digital literacy initiatives for both children and adults.

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Published on March 11, 2020
Author:          Filed under: Analysis
 

The New Presidential Regime in Brazil: Constitutional Dismemberment and the Prospects of a Crisis

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

Latin America is essentially presidential. All eighteen Latin American countries[1] adopt presidentialism as their system of government, but, comparatively to the U.S. Constitution’s “archetype,” Latin American presidents are normally granted expanded lawmaking and budgetary powers.[2] Brazil follows such a pattern, but it has some particularities: first, its political party system is certainly the most fragmented in the region (and possibly in the world), so it fundamentally hinges on stable political coalitions for governability; second, it has long courted parliamentarism and, in fact, was the only country in the region where it was adopted for a long period[3] (a monarchical parliamentarism between 1840 and 1889, and then a republican one between 1961 and 1963). Both are connected: parliamentarism, though never again adopted, is normally revived in contexts of political crisis, which occurs when the relationship between Presidents and Congress are in serious trouble. Currently, the contentious relationship between President Jair Bolsonaro and Congress has sparked a new presidential paradigm: a President with limited lawmaking and, mainly, budgetary powers. It is certainly not parliamentarism – even though some call it “soft parliamentarism” -, but it is clearly not the presidentialism that was designed in the 1988 Constitution. Is Brazil enduring a sort of “constitutional dismemberment” in its system of government?

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Published on March 10, 2020
Author:          Filed under: Analysis
 

Five Questions with Deepa Das Acevedo


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about scholarship.

This edition of “Five Questions” features a short video interview with Deepa Das Acevedo, Assistant Professor of Law at the University of Alabama. A legal anthropologist interested in Indian constitutional law and democracy, her book-in-progress on The Battle for Sabarimala (forthcoming, OUP) explores religion-state relations in India through the lens of temple governance.

Asked to identify her favorite paper among the many she has authored, she selected “Temples, Courts, and Dynamic Equilibrium in the Indian Constitution,” available here and published in the American Journal of Comparative Law.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on March 10, 2020
Author:          Filed under: Reviews
 

What’s New in Public Law


Vini Singh, Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur, 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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Colombian Constitutional Court ruled against legalizing abortion in the first sixteen weeks of pregnancy.
  2. The Supreme Court of the UK held that a refugee can pursue a claim for damages against the government for illegal detention.
  3. The Supreme Court of Canada ruled that mining company Nevsun can be sued in Canada for alleged human rights violations abroad
  4. The Ukraine Constitutional Court declared that the abolition of the old Supreme Court was unconstitutional.
  5. The German Constitutional Court upheld the right to self – determined death and declared the ban on professionally assisted suicide as unconstitutional.
  6. The Constitutional Court of Germany upheld a ban on wearing a headscarf for legal trainees.

In the News

  1. The President of Argentina proposes legalizing abortion.
  2. U.S. Supreme Court takes up the most high profile abortion case in decades.
  3. Guinea’s President postpones vote on a new constitution and parliamentary elections over international concerns.
  4. United Nations Commissioner on Human Rights files intervention application in the Supreme Court of India on the Citizenship Amendment Act.
  5. Prime Minister Benjamin Netanyahu claims the biggest win in Israel elections.
  6. Spain plans “only yes means yes” rape law.
  7. President Putin proposes amendments to the Russian Constitution that will proclaim Russian’s faith in God and define marriage as a union between a man and woman.

New Scholarship

  1. Hedvig Bernitz and Victoria Enkvist, Freedom of Religion: An Ambiguous Right in the Contemporary European Legal Order (2020) (examining different perspectives on the concept of freedom of religion in Europe against the background of the European Convention on Human Rights, the EU Charter of Fundamental Rights and other international human rights treaties)
  2. Rachel Cahill-O’Callaghan, Values in the Supreme Court: Decisions, Division and Diversity (2020) (empirically examining the significance of values in the decision-making of the UK Supreme Court)
  3. Abhinav Chandrachud, Secularism and the Citizenship Amendment Act (2020) (examining provisions of the Citizenship Amendment Act against the backdrop of the citizenship provisions of the Indian Constitution)
  4. Giacomo Delledone, Giuseppe Martinico, Matteo Monti and Fabio Pacini, Italian Populism and Constitutional Law: Strategies, Conflicts and Dilemmas, (2020) (exploring the relationship between constitutionalism and populism in the Italian context)
  5. Jill I. Goldenziel, Law as a Battlefield: The U.S., China and Global Escalation of Lawfare, (2020) (arguing that the US needs to develop a lawfare strategy to combat its adversaries.)
  6. Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi, Judicial Review: Process, Powers and Problems (Essays in the Honour of Upendra Baxi), (2020) (demonstrating the different facets of judicial review based on the vast area of comparative constitutional law)
  7. Karl M. Manheim and Lyric Kaplan, Artificial Intelligence: Risks to Privacy and Democracy, 21 Yale Journal of Law & Technology (2019) (arguing for greater attention to risks and impacts of AI on economic and political decisions at the national level, with attendant regulation)

Calls for papers and announcements

  1. Centre for Socio-Legal Studies, at the University of Oxford, invites application for the position of an Associate Professor. The deadline for applications is April 2, 2020.
  2. Nordic Journal of European Law invites submissions, including articles, case notes and book reviews, related to issues closely connected to European law developments for inclusion in the next issue. The deadline for submissions is April 30, 2020.
  3. Lund University invites applications for two general PhD positions and one PhD position with the Quantum Law project, which explores the legal implications of quantum computing. The deadline for applications for all three openings is on March 18, 2020.
  4. The School of Advanced Studies, University of London invites submissions for its workshop “Facing the Anthropocene in Latin America: Stories, Agencies and Institutions,” to be held on April 28, 2020. The deadline for the submission of abstracts is Monday, March 9, 2020.
  5. The Lund University, Sweden invites submission for a conference on “Law and Digital Society: Reimagining the Futures,” to be held on August 24-26, 2020. The deadline for the submission of papers and proposals is March 15, 2020.
  6. The Graduate Law Students Association, McGill University’s Faculty of Law, welcomes submissions for the 13th Annual McGill Graduate Law Conference on the theme “Law Actually: Intimacy and Trust,” to be held on May 7-8, 2020. The deadline for submissions has been extended until March 10, 2020.
  7. The LVI 2020: Legal Information and Access to Justice, to e held on September 15-16, 2020, will be hosted by the Institute of Advanced Legal studies, University of London and BAILII.
  8. Registrations are open for the ACS Conference on the topic “Reviving Democratic Constitutionalism,” to be held March 20-21, 2020.
  9. The National University of Singapore invites applications for the position of Assistant Professor in Media Law & Policy. Applications may be submitted by September 19, 2020.
  10. The Central European University will conduct a summer course on Constitution Building in Africa from June 29, 2020, to July 8, 2020. The deadline for applications has been extended until March 15, 2020.

Elsewhere Online

  1. Gabriel Armas Cardona, Context Matters: The Rule of Law and Armenia’s Referendum to Remove Constitutional Court Judges, Verfassungsblog
  2. Leonid Sirota, A Matter of Unwritten Principle, Double Aspect
  3. National Constitution Center, Dred Scott Decision Still Resonates Today, Constitution Daily
  4. Jim Gallagher, The Scottish Referendum Argument, Centre for Constitutional Change
  5. Gautam Bhatia, Proving Citizenship: Lessons from the African Court on Human and Peoples’ Rights, Indian Constitutional Law and Philosophy
  6. Simon Drugda, Behind the Scenes of Brexit: An Inside Look on the Work of UK Supreme Court, DCU Brexit Institute
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Published on March 9, 2020
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Book Review: Jesse Hartery on “Territory and Power in Constitutional Transitions” (George Anderson and Sujit Choudhry eds.)


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Jesse Hartery reviews Territory and Power in Constitutional Transitions (George Anderson and Sujit Choudhry, eds., Oxford University Press, 2019).


Jesse Hartery will be a Law Clerk at the Supreme Court of Canada during the 2020-2021 term. He is the recipient of the 2019 Ronald L. Watts Award from the International Association of Centres for Federal Studies.


Territory and Power in Constitutional Transitions brings together an impressive group of scholars to evaluate how political mobilization, constitution-making processes, and constitutional design interact in constitutional transitions in which territorial cleavages are politically salient. The ability to draw comparative lessons from a broad range of case studies strengthens the value of this book for scholars and practitioners alike.

The first seventeen chapters consist of case studies of Bolivia, Bosnia and Herzegovina, Cyprus, Ethiopia, India, Iraq, Indonesia, Kenya, Nepal, Nigeria, the Philippines, South Africa, Spain, Sri Lanka, the United Kingdom, Ukraine, and Yemen. Interestingly, each chapter includes a section on “Lessons Learned”. As a result, useful conclusions can be drawn before getting to the last three chapters.

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Published on March 5, 2020
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Invitation to Friends of I-CONnect: Conference on “The Imperial Presidency in the Twenty-First Century” at The University of Texas at Austin


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

Friends of I-CONnect are invited to a conference on “The Imperial Presidency in the Twenty-First Century,” to be held here at The University of Texas at Austin on March 26-28, 2020. I am hosting this conference along with my faculty colleague Sanford Levinson.

The conference will feature 30+ speakers across six panels as well as a keynote address by Pulitzer-Prize winning journalist Charlie Savage of the New York Times.

The full conference program is available here.

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Published on March 3, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Maja Sahadžić, Research Fellow, University of Antwerp

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 Germany ruled that the law banning assisted suicide services is unconstitutional.
  2. The Constitutional Court of Germany confirmed that a headscarf ban for lawyers and trainees in German courtrooms is not unconstitutional.
  3. The Constitutional Court of Indonesia ruled that the simultaneous general elections are “most constitutional”.
  4. The Constitutional Court of Thailand dissolved an opposition party.
  5. The Constitutional Court of Thailand ruled that a provision in the criminal code regarding abortion violates the Constitution, and must be amended.
  6. The Constitutional Court of Guatemala suspended the appointment of judges to the Supreme Court amid concerns over influence peddling.
  7. The Constitutional Court of Malawi dismissed the application to suspend a landmark judgment that annulled the last presidential elections.
  8. The Constitutional Court of Ecuador denied the application to hold a referendum on mining activities in the Province of Azuay and confirmed the right of mining concession holders to legal security.
  9. The Constitutional Court of South Africa ruled that people born in South Africa to non-South African parents can apply for citizenship.
  10. The Constitutional Court of Israel ruled that the surrogacy law excluding single men and gay couples violates the constitutional rights to equality and parenthood.

In the News

  1. All judges of the Armenian Constitutional Court rejected the Government’s early retirement offer.
  2. The working group for drafting amendments to the Russian Constitution announced the date of a national referendum on constitutional changes.
  3. The President of the European Court of Human Rights appointed a new international judge to the Constitutional Court of Bosnia and Herzegovina.
  4. The European Parliament is considering to hold its meetings and plenary sessions by teleconference due to growing concerns about the fast-spreading coronavirus.
  5. The Parliament of Iraq failed to approve a new Government threatening to create a constitutional vacuum.
  6. The Tunisian Parliament approved Prime Minister-designate ending months of political deadlock.
  7. The Austrian Parliament passed a resolution condemning the Boycott, Divestment and Sanctions campaign as antisemitic, urging that the anti-Israel movement not be supported.

New Scholarship

  1. Karlo Basta, Performing Canadian State Nationalism through Federal Symmetry, Nationalism and Ethnic Politics (2020) (exploring the politics of federal a/symmetry in Canada, particularly in response to Quebec’s demands for greater recognition).
  2. Pau Bossacoma, Morality and Legality of Secession, A Theory of National Self-Determination (2020) (exploring secession from three normative disciplines: political philosophy, international law and constitutional law).
  3. Nasia Hadjigeorgiou, Protecting Human Rights and Building Peace in Post-Violence Societies (2020) (examining the relationship between protecting human rights and building peace in post-violence societies).
  4. Nausica Palazzo, Equality in Canada: A Tale of Non-normative Groups Struggling with Grounds of Discrimination, Oñati Socio-Legal Series (2020) (addressing the limits associated with a rigid grounds-based approach to equality, requiring claimants to categorize their identity within a “ground”, by taking the Canadian Supreme Court’s case law in the field of marital status as a case study).
  5. Jill I. Goldenziel and Manal Cheema, Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA, Maryland Law Review (2019) (explaining how lessons learned from the Foreign Intelligence Surveillance Act can inform legislation that would balance national security and Constitutional rights in the fight against disinformation).
  6. R. Daniel Kelemen, The European Union’s authoritarian equilibrium, Journal of European Public Policy (2020) (examining an original commitment to liberal democracy and backsliding toward competitive authoritarianism in the European Union).
  7. Joel Harrison, Post-Liberal Religious Liberty, Forming Communities of Charity (2020) (arguing that religious liberty is rooted in a theologically derived narrative of secularisation rather than being neutral).
  8. Mattia Casula, Under which conditions is Cohesion Policy effective: proposing an Hirschmanian approach to EU structural funds, Regional and Federal Studies (2020) (comparing cohesion policy implementation in Italy and Spain from 1989 to 2017 to explain where, when, and how it has been successful).
  9. Jorge Luis Fabra Zamora (ed.), Jurisprudence in a Globalized World (2020) (investigating the modifications to jurisprudence’s methodological approaches driven by globalization, the concepts and theoretical tools required to account for putative new forms of legal phenomena, and normative issues relating to the legitimacy and democratic character of these legal orders).

Call for Papers and Announcements

  1. The United States Institute for Peace invites registrations for the event “Global Trends in the Rule of Law, Latest Findings and Insights from the World Justice Project Rule of Law Index 2020” in Washington, D.C. on 11 March 2020.
  2. The Justice System Journal issues a call for papers for the special issue “Justice for All: Empirical Research on Indigent Defense”. The deadline for submissions is 15 May 2020.
  3. The University of St Andrews welcomes submissions for the conference “3rd International Conference on Migration and Mobilities in St Andrews” on 8-10 July 2020. The deadline for submissions is 7 March 2020.
  4. The University of Leiden invites submissions for a series of workshops “Behavioural Approaches in International Law” in Leiden and Hamburg starting on 26 November 2020. The deadline for submissions is 30 March 2020.
  5. The University of Antwerp invites applications for the summer school “Legal technology and legal innovation” in Antwerp on 7-11 September 2020. The deadline for applications is 1 May 2020.
  6. The University of Antwerp invites applications for tenured academic staff in two courses “Global legal systems” and “Legal pluralism”. The deadline for applications is 9 April 2020.

Elsewhere Online

  1. Brice Dickson, Unionist Fears in a United Ireland, IACL-AIDC Blog
  2. Anna Gamper, Second chambers in federal states, 50 Shades of Federalism
  3. Gabriel Toggenburg, The 5th of all EU-r rights: no forced labour and how the Charter contributes, Eureka!
  4. Hanna Wilberg, A Duty of Consistency? The Missing Distinction Between Its Two Forms, UK Constitutional Law Association Blog
  5. Brian Christopher Jones, The Widely Ignored and Underdeveloped Problem with Judicial Power, UK Constitutional Law Association Blog
  6. Timothy Jacob-Owens, A Breakthrough for Language Rights in Northern Ireland, Oxford Human Rights Hub
  7. David R. Cameron, After another election setback, the CDU moves up date for choosing new leader, Yale MacMillan Center
  8. D. Tinashe Hofisi, Fortifying Zimbabwe’s ‘Imperial’ Presidency? The Proposed Second Amendment to the Constitution, ConstitutionNet
  9. Marguerite Soete and Annabelle Lepièce, Will Thomas Cook bankruptcy help Brussels Airlines to avoid a fine by the Belgian Competition Authority?, Lexology
  10. David Abraham, Class, Identity and “We the People”, Verfassungsblog
  11. Daniel Halberstam, Could there be a Rule of Law Problem at the EU Court of Justice?, Verfassungsblog
  12. Timothy Less, Bosnia’s ‘Second Collapse’ is Starting to Look Inevitable, BalkanInsight

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Published on March 2, 2020
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Special Undergraduate Series–The Doctrine of Vested Interest and India’s Unconstitutional Ban on E-Cigarettes


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


–Nihal Sahu and Vedantha Sai, B.A. LLB (Hons.) Students, The National University of Advanced Legal Studies, Kochi

On the 18th of September, 2019, the President of India promulgated an ordinance prohibiting electronic cigarettes, imposing penalties up to one year of imprisonment and a fine of one lakh rupees for violating the ban. In spite of the immediate reactions of e-cigarette manufacturers, as well as various petitions in High Courts throughout the country, it is finally possible, as the smoke has settled, to examine the constitutionality of the ban. In this post, we advance a transformative reading of the presumption of constitutionality, arguing that it is concomitant with the test of arbitrariness under the Indian Constitution’s equality code.

While there exists evidence that e-cigarettes, which produce an aerosol by heating a complex solution of chemicals that may contain nicotine (though in lighter quantities), cause health problems, there is no conclusive evidence that they pose a long-term health risk comparable to that of conventional combustible cigarettes.  Cigarettes, however, remain merely taxed and regulated, while e-cigarettes and other vaping products are now flatly illegal. This is perplexing. Why do cigarettes, an acknowledged and proven health risk, remain freely available, while e-cigarettes are banned?

In this post, we argue that this logical discrepancy violates the Constitution of India. The argument is based on the conventional doctrines of reasonable classification, arbitrariness and proportionality (Part I). Further, the Government, has a vested financial interest in the largest tobacco company in India. Legalarguments are, of course, separate from the logical and public policy problems with the ban. We argue, however, in this circumstance, that claims generally seen as persuasive policy arguments shift the presumption of constitutionality and impose a direct burden on the state in the context of constitutional litigation by virtue of their vested interest (Part II). 

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Published on February 29, 2020
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Enter Friends of Court: Amicus Briefs in Slovakia


Simon Drugda, PhD Candidate at the University of Copenhagen

The Slovak Parliament passed a new organising act on the Constitutional Court in 2019, which for the first time recognised the admissibility of unsolicited amicus briefs.[1] This post examines the design of the device and its functional alternatives in Slovak constitutional law.

Amici Curiae, or “friends of the court,” are individuals, groups, or entities, who present the court with new legal arguments, social scientific information, or alternative perspectives on the litigated question. The device allows interested non-parties to influence the case outcome, which may have a larger systemic impact.

The function of amicus briefs differs based on the context and author(s) of the brief. The Italian Constitutional Court recently also changed its rules of procedure to allow groups and other entities “representing collective or diffuse interests” to make submissions to the Court.[2] From the wording and content of the announcement, it seems that the primary function of amicus briefs in Italy is increased public participation because the Court might have been previously inaccessible, or perceived as such.[3] There is not much to helps us understand the utility of amicus briefs in Slovakia. Since the device, has been operative for less than a year, we lack data on the volume of amicus briefs, their content, the stage of submission, and identities of amici.

Nevertheless, we may infer the purpose of the change to admit unsolicited third-party submissions at the apex level from the explanatory memorandum to the Act on the Constitutional Court. The legislation was drafted in cooperation with the Court and its judges, who seemed to be particularly interested in using the device for information acquisition.[4] Under the previous legal framework, the President of the Constitutional Court (CCP) could request the opinion of the President of the Supreme Court and the Attorney General in cases of a judicial review of legislation or administrative acts.[5] The consultative process enabled the CCP to acquire relevant information from the two most senior officers in the legal system on demand. The types of actors that the Court could address was limited, however, and opinions of the AG and President of the Supreme Court at times lacked non-redundant informational content.

The Court never admitted unsolicited submissions from outside of the justice system, although select few NGOs tried to intervene in high-profile cases. Perhaps the most memorable instance of such an attempt was the brief of an NGO examining comparative case law on self-amnesties in the Amnesty Abolition Case.[6] In that case, the Court did not consider the submission but at least acknowledged the receipt of the brief on the margins of the decision.[7]

However, the decision making of the Constitutional Court involves complex legal questions, which may exceed the disposable knowledge resources and capacity of the Court. The Court needs knowledge. There are several means how to acquire relevant but unavailable information, including requests for opinions to government entities, but also contracting external advisors with expertise in niche areas of law.[8] Still, hiring external advisors is an added expense. Amicus briefs come at a marginally lower cost. Allowing unsolicited submission enables the Court to externalise costs of legal research to third parties, and the upside for the amici is the ability to translate their preferences into law.[9]

The new Act on the Constitutional Court extends the power of the CCP to request opinions from other government bodies, including the Ombudsman, but also non-governmental entities, such as professional lawyers’ organisations, scientific institutions, renowned experts in the field, or groups, whose legal interests may be affected by the case-outcome (Article 86.2). The request of the CCP entails a legal obligation to submit an opinion (Article 86.3).

More interestingly, members of the legal profession may also submit unsolicited amicus briefs, although the Court retains the right to reject submissions (86.4). The design of the device seemingly confirms that the Slovak Court, unlike its Italian counterpart, is primarily interested in expert knowledge. That is because the ability of civil society groups to file a brief is limited by the requirement that lawyers must sponsor the brief. That is unfortunate because the rules of procedure for the Constitutional Court do not allow third-party intervention to a case or actio popularis. Other avenues for public participation in constitutional litigation are unavailable. That said, even a limited introduction of amicus briefs to Slovak constitutional law is a welcome development. The CCP can newly solicit opinions from outside groups, or these groups may themselves present an unsolicited submission to the Court. Decisions of the Constitutional Court may potentially affect vast areas of law and public policy because of their strong radiating effect. We may, therefore, expect an increase in the rate of submission of amicus briefs over time, as interest groups gain proficiency in using the device.[10]

Suggested Citation: Simon Drugda, Enter Friends of Court: Amicus Briefs in Slovakia, Int’l J. Const. L. Blog, Feb. 27, 2020, at:
http://www.iconnectblog.com/2020/02/enter-friends-of-court:-amicus-briefs-in-slovakia


[1] Article 86 of the Act No. 314/2018 Coll. on the Constitutional Court of the Slovak Republic

[2] Italian Constitutional Court, Press Release – The Court Opens to Hearing the Voice of Civil Society (11 January 2020) <https://www.cortecostituzionale.it/documenti/comunicatistampa/Press_release_AC.pdf>

[3] Matteo Romagnoli, “The Italian Constitutional Court Opens Up to Hear the Voice of Civil Society Matteo Romagnoli” (Verfassungsblog, 15 February 2020) <https://verfassungsblog.de/the-italian-constitutional-court-opens-up-to-hear-the-voice-of-civil-society/>

[4] Explanatory memorandum to the draft Act on the Constitutional Court <https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=456174>

[5] Article 39 of the Act No. 38/1993 Coll. on the Organisation of the Constitutional Court, on Court Proceedings, and Status of Constitutional Judges

[6] Via Iuris, Amicus Curiae Opinion on the Judicial Review of the Resolution of the Slovak Parliament to Abolish Mečiar’s Amnesties <https://viaiuris.sk/wp-content/uploads/2017/09/VIA-IURIS-list-AMICUS-CURIAE-Meciarove-amnestie-16.5.2017.pdf>

[7] PL. ÚS 7/2017 [84]

[8] Article 31 of the Act on the Constitutional Court

[9] On the flip side, judges have control over the direction of research of their assistant but not the amici.

[10] For amicus briefs to be fully functional, however, the Court and its President need to establish a practice on the maximum lengths of amicus briefs, the deadline for their submissions, and other technicalities such as electronic filing. Detailed rules on the submission of amicus briefs are still lacking.

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Published on February 27, 2020
Author:          Filed under: Developments
 

Crying Wolf: The Emergency Comes Before the U.S. Supreme Court

Andrea Scoseria Katz, NYU School of Law

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

On Saturday, February 22, the United States Supreme Court granted an emergency request by the Trump administration to suspend a lower federal court order blocking a new immigration rule from taking effect while it faced challenge in litigation.[1] In an order issued summarily and without comment, the Supreme Court lifted the lower court injunction, allowing the rule to take effect.

Much of the commentary surrounding the case, Wolf v. Cook County, has focused on the “public charge rule,” which forces immigrants seeking residency in the United States to demonstrate that they will not rely on any public assistance, including Medicaid, supplemental nutrition, and housing assistance. Critics have described the new rule as a “wealth test” and a “brazen attempt to limit legal immigration by forcing immigrants to prove their financial status” to enter the country.[2] Last summer, a top Trump official responded to such criticism with an improvised paraphrase on Emma Lazarus’s sonnet, famously etched on the Statute of Liberty: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”[3]

Those debates notwithstanding, it may be the procedural oddities around Wolf that give the most lasting cause for alarm. After several courts blocked the revised rule on the grounds that it departed dramatically from federal law, the Government made a direct request for emergency relief to the Supreme Court while these cases were pending before the courts of appeal. In January, in an order issued with no explanation, and over the dissent of all four liberals, the Court granted the Government’s request and allowed the public charge rule to take effect across most of the country. This weekend’s order, concerning a second case on the rule, produced an identical 5-4 vote unaccompanied by an explanation. There was one difference: a scathing dissent from Justice Sonia Sotomayor accusing the majority of undermining the “fair and balanced” administration of justice by bowing to a series of “increasingly hollow” requests for emergency relief by the Trump administration.

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Published on February 26, 2020
Author:          Filed under: Developments