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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

—Sandeep Suresh, Faculty Member, Jindal Global Law School

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

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

Developments in Constitutional Courts

  1. The Supreme Court of Columbia held that the Amazon rainforest is an entity possessing legal rights with the aim of curbing massive deforestation in that region.
  2. The US Supreme Court held that an Arizona police officer who shot a woman with a knife in her hand outsider her own home was entitled to qualified immunity from any liability. In her dissent, Justice Sonia Sotomayor observed that the majority’s decision allows police officers to “shoot first and think later”.
  3. The Supreme Court of California (USA) held that the law which allows the State to collect DNA samples from felons is constitutional.
  4. The Supreme Court of India will decide whether the ‘creamy layer’ amongst Scheduled Castes/Scheduled Tribes can be excluded from the ambit of reservation policy. At the moment, the creamy layer exception is only put on Other Backward Classes (OBCs).
  5. The European Court of Human Rights rejected a German national’s challenge against his conviction for posting a picture of a Nazi chief wearing a swastika armband on his blog.

In the News

  1. Justice J. Chelameswar, the second senior most judge of the Indian Supreme Court, wrote a letter to the Chief Justice of India asking him to call a full court meeting to discuss the government’s excessive interference in judicial appointments.
  2. The Parliament of Malaysia passed a bill which criminalizes publishing and spreading fake news. Offenders can be sent to prison for maximum six years for committing the said crime.
  3. The President of South Korean, Mr. Moon Jae-in, proposed constitutional reforms that have the capacity to reduce presidential powers.
  4. In India, opposition parties are planning to move an impeachment motion in the Parliament against the sitting Chief Justice of India.
  5. The Consultative Committee in Philippines proposed to include ‘Rights of the Poor’ such as education, health, and decent housing in their national constitution.

 New Scholarship

  1. Paul Daly, Updating the Procedural Law of Judicial Review of Administrative Action, University of British Columbia Law Review (2018 forthcoming) (developing a set of considerations which courts ought to keep in mind when updating the procedural law to bring it into line with the substantive law in Canada).
  2. Bríd Ní Ghráinne and Aisling McMahon, Access to Abortion in Cases of Fatal Fetal Abnormality: A New Direction for the European Court of Human Rights? (March 12, 2018) (pointing out that the jurisprudence of the European Court of Human Rights is slowly aligning with internationally recognized principles of abortion rights).
  3. Benjamin Joshua Ong, The Doctrine of Severability in Constitutional Review: A Perspective from Singapore, Statute Law Review (2018) (explaining Singapore’s law on the doctrine of severability used in constitutional review in light of the Singapore Court of Appeal’s decision in Prabagaran a/l Srivijayan v Public Prosecutor).
  4. Nicholas Papaspyrou, Constitutional Argument and Institutional Structure in the United States (Hart Publishing 2018) (arguing that constitutional interpretation is a special kind of practical reasoning, aiming to construct and specify morally sound accounts of the Constitution and surrounding constitutional practice).
  5. Steve Sanders, Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue, Fordham Law Review (2018 forthcoming) (examining the significance of dignity, the principle that unifies Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas, to show how the Supreme Court interprets democratic preferences and constructs social meaning in order to apply fundamental constitutional norms to emerging legal claims).
  6. Franita Tolson, Election Law ‘Federalism’ and the Limits of the Antidiscrimination Framework, William & Mary Law Review (Vol. 59, 2018) (claiming that the Congress and the courts can disregard state sovereignty in enacting, enforcing, and resolving the constitutionality of legislation passed pursuant to the Elections Clause).

Call for Papers and Announcements

  1. The University of Melbourne and the University of Cambridge are jointly organizing a conference on ‘The Frontiers of Public Law’ on July 11-13, 2018 in Melbourne. Interested participants may register for the conference at the earliest.
  2. The ‘19th Yale/Stanford/Harvard Junior Faculty Forum’ will be held on June 13-14, 2018 at Harvard Law School. Scholars who are interested to present their papers at this forum must submit their papers by March 1, 2018 to Rebecca Tushnet at rtushnet@law.harvard.edu.
  3. The American Constitution Society is organizing the ‘2018 ACS National Convention’ on June 7-9, 2018. Interested participants may register online for the convention.
  4. The Government and Law research group at the University of Antwerp is organizing an expert seminar on ‘Constitutional asymmetry in multi-tiered multinational systems’ on April 23-24, 2018. Interested participants may register for the seminar at the earliest.
  5. The Institute of Hazrat Mohammad is organizing a ‘Summer School on Human Rights 2018’ on July 1-5, 2018 in Dhaka, Bangladesh. Interested applicants must submit their application and register before June 10, 2018.

Elsewhere Online

  1. Noah Feldman, Poland Has a Way Out of Its Holocaust Memory Law, Bloomberg View
  2. Editorial, What the Supreme Court Doesn’t Get About Racism, New York Times
  3. Balázs Majtényi, Alíz Nagy, and Péter Kállai, “Only Fidesz” – Minority Electoral Law in Hungary, Verfassungsblog
  4. Senem Gurol, Resuscitating the Turkish Constitutional Court: The ECtHR’s Alpay and Altan Judgments, Strasbourg Observers
  5. Janina Boughey, Resolving some ‘anomalies’ and ‘snares’ in judicial review: Probuild Construction, AUSPUBLAW
  6. Justin Florence and Berin Szóka, Trump vs. Bezos: The president is on the wrong side of the Constitution, The Seattle Times
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Published on April 9, 2018
Author:          Filed under: Developments
 

Virtual Bookshelf: “New Challenges to Constitutional Adjudication in Europe: A Comparative Perspective” (Routledge 2018)

—Richard Albert, The University of Texas at Austin

The newest book in the Routledge Series on Comparative Constitutional Change is a volume on New Challenges to Constitutional Adjudication in Europe: A Comparative Perspective, co-edited by Zoltán Szente and Fruzsina Gárdos-Orosz, both of the Hungarian Academy of Sciences and the National University of Public Service.

Here is a short description of the book:

In the past few years, constitutional courts have been presented with new challenges. The world financial crisis, the new wave of terrorism, mass migration and other country-specific problems have had wide-ranging effects on the old and embedded constitutional standards and judicial constructions. This book examines how, if at all, these unprecedented social, economic and political problems have affected constitutional review in Europe. As the courts’ response must conform with EU law and in some cases international law, analysis extends to the related jurisprudence of the European Court of Justice and the European Court of Human Rights. The collection adopts a common analytical structure to examine how the relevant challenges have been addressed in ten country specific case studies. Alongside these, constitutional experts frame the research within the theoretical understanding of the constitutional difficulties of the day in Europe. Finally, a comparative chapter examines the effects of multilevel constitutionalism and identifies general European trends.

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Published on April 8, 2018
Author:          Filed under: Reviews
 

The Rise of Comparative Constitutional Change — Book Review: Reijer Passchier and Alissa Verhagen on “The Foundations and Traditions of Constitutional Amendment”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Reijer Passchier and Alissa Verhagen review The Foundations and Traditions of Constitutional Amendment (Hart 2017), edited by Richard Albert, Xenophon Contiades and Alkmene Fotiadou]

–Reijer Passchier[*] and Alissa Verhagen[**]

I. The renaissance of an issue

The matter of constitutional change is one of the most difficult and challenging issues of modern constitutional law.[1] For instance, the question as to how difficult it should be to change a constitution was prominent during various constitutional conventions that were held at the end of the 18th and the early 19th centuries. Nevertheless, the matter of constitutional change in comparative constitutional law has always been a bit like the runt of the litter. Perhaps this is because the constitution that most comparativists take as a reference point – the constitution of the United States (US) -, has rarely been amended. The United States constitutional legislator adopted its last amendment, the 27th amendment in 1992; the penultimate amendment – the 26th – was adopted in 1971. What didn’t help the matter is that both amendments have not been of fundamental importance to the development of American constitutional law, as they concerned such important, but not truly fundamental matters, as the salary of the Congress and the electoral age respectively.

However, in the last two decades, a true renaissance of the study of comparative law of constitutional change has taken place.[2] This is partly because authors such as Bruce Ackerman and David Strauss resoundingly showed that major constitutional developments in the US, such as the New Deal and the Civil Rights Revolution, took place outside the amendment procedure of the US Constitution.[3] Because of these sweeping reinterpretations of American constitutional history, people in other countries started wondering whether ‘constitutional moments’ or ‘informal constitutional changes’ had taken place in their own area as well.[4]

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Published on April 4, 2018
Author:          Filed under: Richard Albert
 
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What’s New in Public Law

—Simon Drugda, Centre for Socio-Legal Studies, University of Oxford (UK)

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. A judge on Albania’s Constitutional Court has been released from duty after not being able to justify his income to a vetting commission.
  2. A panel of five judges will hear a consolidated case challenging the process and subsequent constitutional amendment of the age limit for a presidential candidate in Uganda.
  3. The Constitutional Court of Chile struck down a law that would have banned universities operating for profit, dealing a blow to free tuition reforms by former president Michelle Bachelet.
  4. American Samoa residents living in Utah filed a lawsuit in a second attempt to gain citizenship status for residents of the U.S. territory.
  5. An administrative court approved Vienna Airport’s plan to build a third runway, more than ten years after the project was first submitted for review. The Constitutional Court of Austria annulled the first ruling of the lower court, which blocked the expansion project for environmental reasons.

In the News

  1. South Korean President Moon Jae-in proposed constitutional amendments to reduce presidential power. This marks the first time since 1980 that the president has proposed a constitutional change.
  2. Maldives President Abdulla Yameen lifted a 45-day-long state of emergency which had outlawed protests during a surge in political turmoil.
  3. A Kenyan high court judge found the Minister of Interior and the inspector general of police guilty of contempt of court and ordered that they appear for sentencing.
  4. Retired U.S. Supreme Court Justice John Paul Stevens called for the repeal of the U.S. Constitution’s Second Amendment, which gives Americans the right to keep and bear firearms.
  5. A Kenyan appeals court ruled that it is unconstitutional to conduct invasive bodily exams to determine whether persons have engaged in “homosexual conduct.”
  6. A Brazilian appeals court unanimously upheld the corruption conviction of former President Luiz Inacio Lula da Silva.

New Scholarship

  1. Stephen Gardbaum, Due Process of Lawmaking Revisited (forthcoming 2018) University of Pennsylvania Journal of Constitutional Law (arguing that statutes enacted by means of illegitimate procedures, including the paying or withholding of donations for votes as with the recent Republican tax law in the U.S., violate the constitutional requirement of due process in lawmaking and should be invalidated by the courts)
  2. Giacomo Delledonne, House of Cards: Comparing the British and the American TV Series from a Constitutional Perspective, 12 Journal of Law, Literature and Culture (2018) (comparing the British and American House of Cards TV series from a constitutional viewpoint)
  3. Jeremy Horder, Criminal Misconduct in Office: Law and Politics (2018) (analyzing the application of the offense of misconduct in public office to personal corruption in politics in England and Wales)
  4. James R. Maxeiner, Failures of American Methods of Lawmaking in Historical and Comparative Perspectives (2018) (arguing that rule-making in civil law jurisdictions makes for a more equitable legal system than the American way of lawmaking)
  5. Giuseppe Franco Ferrari, Reijer Passchier, and Wim Voermans (eds), The Dutch Constitution Beyond 200: Tradition and Innovation in a Multilevel Legal Order (2018) (providing a comparative thematic introduction to the Constitution of the Netherlands)
  6. Jud Mathews, Extending Rights’ Reach: Constitutions, Private Law, and Judicial Power (2018) (discussing how courts make choices about whether, when, and how to give rights horizontal effect in three case studies, of Germany, the United States, and Canada)
  7. John Dinan, State Constitutional Politics: Governing by Amendment in the American States (2018) (looking at the various occasions in American history when state constitutional amendments have served as instruments of governance)

Special Announcement

The Arab Association of Constitutional Law (AACL) is pleased to announce the publication of its first annual Yearbook. The first publication of its kind, the Yearbook includes 22 chapters, contributions from 21 authors, who stem from 10 different countries. The first edition of the Yearbook is the outcome of several years of effort by the Arab Association of Constitutional Law’s membership.

Call for Papers and Announcements

  1. The Faculty of Law at Masaryk University and the Institute of State and Law of the Czech Academy of Sciences invite submissions for a conference on “Qualitative Research in Law,” to be held on October 26, 2018. The deadline for submission of abstracts is June 30.
  2. The LUISS School of Government in cooperation with LUISS Centre for Parliamentary Studies, CEUR Foundation, International Political Science Association (IPSA), SciencesPo – Centre d’études européennes, and ULB, Université Libre de Bruxelles invite applications for the 7th edition of the Summer Program-Jean Monnet Module on “Parliamentary democracy in Europe”, this year devoted to “Parliamentary Accountability and New Technologies: Transparency, Privacy and Security Challenges“, and taking place at LUISS Guido Carli University, Rome, on July9-20, 2018. The deadline for applications is April 29.
  3. The Chair for Public Law and Comparative Law at the Humboldt University of Berlin and the Friedrich Naumann Stiftung for Freedom invite submissions for a workshop on “The Future of Law: Technology, Innovation and Access to Justice,” to be held on November 29-30, 2018. The deadline for submission of abstracts is April 22.
  4. The WZB Berlin Social Science Center, the European University Institute and the London School for Economics and Political Science invite submissions for the second European Junior Faculty Forum for Public Law and Jurisprudence to be held at the European University Institute on July 12-13, 2018. The deadline for submissions is May 1.
  5. The Asser Institute invites applications for a postdoctoral position in human rights to assist with the Memory Laws in European and Comparative Perspectives (MELA) project and to strengthen the research capacity of the Asser Institute in anti-discrimination law in a dedicated research strand on “Human dignity and security in international and European law.” The deadline for submission of applications is 15 May 2018.
  6. Science Po Law School invites submissions for its 7th graduate conference on “Law and Disruption,” to be held on June 20, 2018. The deadline for submission of abstracts is April 15.

Elsewhere Online

  1. Max Steuer, The Slovak Constitutional Court on Amnesties and Appointments of Constitutional Judges: Supporting Unrestrained Majoritarianism?, Diritti Comparati
  2. David R. Cameron, Brexit negotiation takes decisive step forward but toughest issues lie ahead, Yale Macmillan Centre
  3. Benjamin Novak, The Honorable Péter Szepesházi: Threat of disciplinary proceedings used to pressure judges, The Budapest Beacon
  4. Matt Glassman, House Procedure, Agenda Setting, and Impeachment, Yale Journal of Regulation Blog
  5. Andrew Hamm, Does the shape of the Supreme Court’s bench affect oral argument?, SCOTUSblog
  6. Richard L. Hasen, Supreme Court Avoids Bush v. Gore II in Ducking Pennsylvania Redistricting Controversy, Harvard Law Review Blog
  7. Steven D. Schwinn, District Court Rejects Suit Against Trump for Violations of the Presidential Records Act, Constitutional Law Prof Blog
  8. Noah Feldman, Second Amendment Repeal Would Hurt Constitution, Bloomberg View
  9. Dominic Ruck Keene, The ‘reasonable citizen’ — Sergei Skripal, UK Human Rights Blog
  10. Jordi Nieva-Fenoll, High Treason in Germany – Rebellion in Spain, Verfassungsblog
  11. Marcelo Figueiredo, Administrative Discretion: a comparative analysis, Blog of the IACL, AIDC
  12. Jerome A. Cohen, Xi Jinping Amends China’s Constitution, Jerry’s Blog
  13. Stephanie Tai, The Human Rights Implications of Xi Jinping’s Limitless Presidential Term, OxHRH
  14. Michael Henry Ll. Yusingco, ‘Imperial Manila’ is a constitutional design: Towards configuring executive authority in a federal system, ConstitutionNet
  15. Pierre de Vos, Is the state authorised to pay Jacob Zuma’s private lawyers in his corruption case?, Constitutionally Speaking
  16. Satang Nabaneh, The unspoken: Unsafe abortion in The Gambia and the necessity for legal reform, AfricLaw
  17. Faizan Mustafa, Rethinking the ‘Office of Profit’ disqualification, Law and Other Things
  18. Saad Rasool, Do courts have authority to punish people for judicial contempt?, Global Village Space
  19. Richard Cullen, Filibustering: Flawed in Principle and Bad for Hong Kong, IPP Review
  20. Lael K. Weis, Legislation as a Method of Constitutional Reform: An Alternative to Formal Amendment?, AUSPUBLAW
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Published on April 2, 2018
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Zuma’s South Africa: A Constitutional Post-Mortem (I-CONnect Column)

—James Fowkes, University of Münster Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Zuma is gone. For many South Africans, a three-word article would be enough.

But for friends of the South African Constitution around the world, this prompts a longer question: what has the Zuma era meant for the South African Constitution?

For nearly nine years, South Africa had an embattled president who could not but look at the rest of the government in terms of its ability to protect himself and his patronage networks. What that has meant for institutions has depended on their ability to contribute to that aim, and their ability to resist. The prosecuting institutions, headed by a presidential appointee, have taken heavy damage under a president who never seem to stop adding to the list of corruption concerns that was already dragging behind him when he stepped into the office. Contrast the Reserve Bank, whose subordination was both less necessary and harder to achieve, and which faced pressure but has emerged essentially unscathed.

The Constitutional Court, of particular interest to constitution watchers, emerges much like the Bank. At no point has its independence been in serious doubt. And it has not survived merely by living to fight another day. The Court never really had to be the last line of resistance nor the most important site of it. Nor did its decisions ever stop power in its tracks (though what court ever does). The ANC’s dominant position could ultimately protect Zuma from parliamentary scrutiny, and he only fell when his party deserted him. Presidential and party power sufficed to keep the corruption prosecutions at bay – though now that he has lost both, the charges are back.[1]

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Published on March 28, 2018
Author:          Filed under: Analysis
 
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Conference Report–Fourth Annual ICON-S-IL Conference–11/12 March 2018

—Yaniv Roznai, Senior Lecturer, Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya

On March 11-12, 2018, the fourth annual conference of the Israeli Chapter of ICON-S took place at the Interdisciplinary Center (IDC) Herzliya. Since the establishment of the Israeli chapter in 2014, this was the biggest ICON-S-IL conference so far, with about 150 scholars participating in 28 panels that covered the most burning issues in Israeli public law, broadly defined.

The conference was organized by the Radzyner Law School together with the Lauder School of Government, Diplomacy and Strategy at IDC, with the support of Nevo Publishing. The organizing committee was composed of Prof. Rivka Weill (chair), Prof. Aharon Barak, Prof. Lior Barshack, Prof. Asif Efrat, Dr. Adam Shinar and Dr. Yaniv Roznai. Sarai Barzel was the conference’s coordinator.

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Published on March 27, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

–Monica Cappelletti, School of Law and Government, Dublin City University (DCU), Ireland

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

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

Developments in Constitutional Courts

  1. The European Court of Human Rights rejected the Irish Government’s request to find torture in 1978 judgment against UK.
  2. The European Court of Human Rights condemned Turkey of pre-trial detention of the journalists.
  3. The Supreme Court of Canada set to decide whether long-term Canadian expats should be allowed to vote.
  4. The Supreme Court of US ruled that a Texas death-row inmate deserves another chance at securing funds for evidence that might lead to a reconsideration of his sentence.
  5. The Supreme Court of US will consider the extent of the federal government’s power to detain for deportation immigrants who have served time for criminal acts. The case will be heard in October.
  6. The Supreme Court of Russia rejected encrypted messaging app Telegram’s appeal that sought to prevent the country’s Federal Security Service from gaining access to its encryption keys.
  7. The Supreme Court of Spain decided to send 25 Catalan separatist leaders, including the former First Minister, Carles Puigdemont, to trial on charges of rebellion, contempt and misuse of public funds, the court confirmed in documents.
  8. The Supreme Court of Israel issued a temporary injunction prohibiting a bank to provide banking services to bitcoin-related account.
  9. The Austrian Constitutional Court ruled on the freedom to define one’s gender identity (third gender).
  10. The Constitutional Court of Romania has partially admitted the immunity of constitutional judges.
  11. The Constitutional Court of Romania ruled that the law for setting up a Hungarian-language high school was unconstitutional.

In the News

  1. The Human Rights Council concluded general debate on the annual report of the High Commissioner for Human Rights.
  2. The Council of Europe’s Committee of Ministers adopted 24 decisions concerning 15 member states at the end of its regular three-day meeting in Strasbourg, as well as one interim resolution related to the excessive length of legal proceedings in Hungary.
  3. The Council of Europe adopted new guidelines on protection of human rights on line.
  4. Inter-American Commission on Human Rights held hearing on implications of Mexico’s new internal security law.
  5. A PIL has been filed in the Supreme Court of India challenging the practice of temporary marriages and polygamy under the Muslim personal law.
  6. The Right Honourable the Baroness Brenda Hale of Richmond (Baroness Hale) and the Right Honourable Beverley McLachlin, PC (Ms McLachlin) have been appointed as non-permanent judges from other common law jurisdictions of the Hong Kong Court of Final Appeal.
  7. The Armenian parliament elected Hrayr Tovmasyan as head of Constitutional Court
  8. The Catalan parliament failed to agree on the election of the new president.
  9. The European Parliament would investigate the misuse of the personal data of millions of Facebook users by Cambridge Analytica.
  10. The Chinese Parliament gave Premier Li Keqiang a second five-year term.
  11. The Ukrainian Parliament is considering a bill that would require lawmakers to check their guns at the entrance.
  12. The Israeli Parliament passed the first reading of a new legislation that would define Israel exclusively as “the nation-state of the Jewish people”.
  13. The Peru President presented his resignation to Congress.
  14. The UK Government is launching a cryptocurrency task force.
  15. The Israeli Government would take legal action against Twitter for ignoring repeated requests to remove online content that was inciting or supportive of terrorism.

New Scholarship

  1. Conor McCormick, Judicial Review of Administrative Action in the United Kingdom: The Status of Standards Between 1890 and 1910, (2018) 10(1) Italian Journal of Public Law (exploring the context, reach, types and frequency of judicial review in the UK from a historical perspective).
  2. Sybe de Vries, Ulf Bernitz, Stephen Weatherill (eds.), The EU Charter of Fundamental Rights as a Binding Instrument. Five Years Old and Growing (2018) (providing a study of the EU Charter of Fundamental Rights as a binding instrument in the last five years).
  3. Caroline von Gall and Tímea Drinóczi (eds.), EU Rule-of-law enforcement – thematic issue of the Osteuropa-Recht (4/2017) (providing an analysis of the normative issues of the enforcement of the rule of law by the European Union and the Council of Europe in Hungary and Poland).
  4. Catherine Dupré, The Age of Dignity. Human Rights and Constitutionalism in Europe (2018) (examining the connections among human dignity, human rights, constitutional law and democracy, and how human dignity’s varied and increasing uses point to a deep transformation of European constitutionalism).
  5. Alan Greene, Permanent States of Emergency and the Rule of Law. Constitutions in an Age of Crisis (2018) (exploring the impact that oxymoronic ‘permanent’ states of emergency have on the validity and effectiveness of constitutional norms and, ultimately, constituent power).
  6. Andrew Harding and Mark Sidel (eds.) Central-Local Relations in Asian Constitutional Systems (2018) (examining territorial governance in Asia in the context of central-local relations).
  7. Ridwanul Hoque, Rule of Law in Bangladesh: The Good, the Bad and the Ugly? (2018), in Chowdhury Ishrak A. Siddiky (ed.), The Rule of Law in Developing Countries: The Case of Bangladesh (providing a comprehensive study of the Bangladeshi constitutionalism of human rights, judicial independence, and executive accountability).
  8. Ridwanul Hoque, Inclusivity role of the judiciary in Bangladesh (2018), in Nizam Ahmed (ed.), Inclusive Governance in South Asia: Parliament, Judiciary, and Civil Service (analyzing the role of the Bangladeshi judiciary in ensuring inclusive constitutionalism, assessing three performance areas: social inclusion, participation of women, and the inclusion of the indigenous people).
  9. Tamara Perišin and Siniša Rodin (eds.) The Transformation or Reconstitution of Europe. The Critical Legal Studies Perspective on the Role of the Courts in the European Union (2018) (examining he role of the Courts and the dialogue among national and European level through the lens of the American critical legal studies (CLS) perspective).
  10. Lawrence Rosenthal, An Empirical Inquiry into the Use of Originalism: Fourth Amendment Jurisprudence During the Career of Justice Scalia (2018) (providing a study of originalism theory in the Fourth Amendment jurisprudence)
  11. Maria Tzanakopoulou, Reclaiming Constitutionalism. Democracy, Power and the State (2018) (articulating an argument for why the constitutional phenomenon remains attached to the state – despite the recent advent of theories of global constitutionalism).

Call for Papers and Announcements

  1. The School of Law in Trinity College Dublin invites applications from suitably qualified candidates for the Chair in Constitutional Governance (full professorship). The deadline for application is April 16, 2018.
  2. The Faculty of Law and Political Sciences of the Pázmány Péter Catholic University, Budapest welcomes applications for the Summer School in Corporate Social Responsibility in Legal, Economic and Moral Context on 25 June – 13 July 2018.
  3. The Constitutionalists Association of Spain announces its XVI Annual Congress to be held in Malaga on 26-27 April 2018. Registrations are open.
  4. The McGill University and the Research Group on Constitutional Studies invite submissions for the Fulbright Canada Research Chair in Political and Constitutional Theory, the visiting faculty fellowship 2019-2020. The deadline for submission is August 1, 2018.
  5. The South Asian Journal of Law and Human Rights (SAJLHR) invites Articles, Short Notes, Book Reviews Case Commentaries and other such for its Volume 5 which will be published tentatively in June 2018. The deadline for paper submissions is May 5, 2018.
  6. On the occasion of the 14th European Society of International Law (ESIL) Annual Conference in Manchester, the Interest Group (IG) on International Human Rights Law (IHRL) invites submissions for a pre-conference roundtable on ‘The Universality Challenge to Human Rights Law: a Sword, a Shield, or Neither?’. Abstract should be submitted before May 1, 2018.
  7. The Northwestern University Law Review announces its first annual issue dedicated to empirical legal scholarship, to be published in spring 2019. The deadline for paper submission is Apr. 15, 2018.
  8. The Institute of International and European Law of the University of Göttingen and the Minerva Center for Human Rights at the Hebrew University of Jerusalem Faculty of Law welcomes submission of abstract by June 1, 2018 for the Unpacking Economic and Social Rights: International and Comparative Dimensions Conference.
  9. The Government and Law Research Group of the University of Antwerp invites submission of abstract for the Law-Making in multi-level settings – federalism, Europe, and beyond Conference. The deadline for submission is April 9, 2018.
  10. The Loyola University Chicago School of Law is organizing its Ninth Annual Constitutional Law Colloquium and welcomes abstract submission by June 18, 2018.
  11. The University of Cincinnati organizes the Transatlantic Approaches to Racial Equality Conference on April 12-13, 2018.

Elsewhere Online

  1. David R. Cameron, Putin landslide in “pseudo-competitive” Russian presidential election, Yale Macmillan Centre
  2. Pieter Cannoot, New Belgian Gender Recognition Act: shouldn’t self-determination also include non-binary people?, Blog of the IACL, AIDC
  3. Paul Craig, European Union (Withdrawal) Bill: Legal Status and Effect of Retained Law, UK Constitutional Law Association Blog
  4. Ming-Sung Kuo, ‘The Place of the Constitution Is Empty’: Chinese Political Aesthetics of Commanding Constitutional Faith, Verfassungsblog
  5. Sara Lembrechts, K. v. Greece – Implementing children’s rights in legal proceedings following an international parental abduction, Strasbourg Observers
  6. Nicola McEwen, A Continuing Source of Disagreement, Centre on Constitutional Change Blog
  7. Michael O’Boyle, Can the ECtHR provide an effective remedy following the coup d’état and declaration of emergency in Turkey?, EJIL: Talk!
  8. Ronan Ó Fathaigh and Dirk Voorhoof, Conviction for performance-art protest at war memorial did not violate Article 10, Strasbourg Observers
  9. Steve Peers, Citizens’ Rights after Brexit: A Personal Perspective, EU Law Analysis Blog
  10. Khemthong Tonsakulrungruang, A Constitutional Court Silencing its Critics, Verfassungsblog
  11. Sam Wice, How House Republicans Could Allow President Trump to Make Recess Appointments, Yale Journal of Regulation Blog
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Published on March 26, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

—Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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

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

Developments in Constitutional Courts

  1. The Supreme Court of India held that every individual has the right to a dignified end of life, thus allowing passive euthanasia.
  2. The Supreme Court of Brazil ruled that trans people have the right to update their gender without undergoing surgery.
  3. The European Court of Human Rights held that Spain violated the freedom of expression (article 10) of two Spanish nationals, convicted for burning a photograph of the Royal couple at a public demonstration.
  4. The Slovenian Supreme Court annulled the result of the referendum held in 2017, that approved the Government’s project of a new railway.
  5. The European Court of Justice condemned the Czech Republic for restricting access to the notary professions exclusively to its own nationals.
  6. The Constitutional Court of South Africa held that minimum sentence legislation in drugs manufacturing cases can be applied only when the State has proved the market value of the produced drugs.
  7. The Indian Supreme Court ruled that the Legislator cannot overrule court judgments by amending legislation retrospectively.
  8. The Constitutional Court of Turkey annulled the legislative provision granting the President of the Communications Authority the power to ex officio block foreign websites on a content base.
  9. The Constitutional Court of Zimbabwe reserved judgment on the voting rights of Diasporans.

In the News

  1. Thailand has passed a law making criticism to the Constitutional Court punishable by imprisonment and by a monetary sanction. The use of rude, sarcastic and violent language would constitute a violation of the law.
  2. President Trump fired Rex Tillerson as secretary of state, replacing him with CIA director Mike Pompeo.
  3. Turkey approved a new electoral law electoral, allowing parties to form alliances.
  4. The Parliament of Macedonia passed a controversial law that would make Albanian the second official language of the country.
  5. Michigan Senate approved the so called Nassar legislation, enhancing rights of sexual abuse victims.
  6. The President of Romania refused the promulgation of the law on the integrity of public officials, sending it back to Parliament.
  7. Trump administration imposed new sanctions on Russia.
  8. The President of the Philippines announced that the country will withdraw from the International Criminal Court treaty.
  9. The Ukrainian General Prosecutor indicted the chairman and 18 judges of the Russian Constitutional Court for the annexation of Crimea by Russia.
  10. The European Parliament approved the EMA transfer to Ametrdam.

New Scholarship

  1. Cheryl Saunders and Adrienne Stone (eds.), The Oxford Handbook of the Australian Constitution (2018) (providing a comprehensive study on the Australian constitutional system, through the analysis of relevant case law and from a comparative perspective as well)
  2. Colin Crawford and Daniel Bonilla Maldonado (eds.), Constitutionalism in the Americas (2018) (presenting a collection of contributions on the US and Latin America constitutions, from comparative, historical and empirical perspectives)
  3. Robert J. Morris, An Eight-Strand Braided Cable: Hawaiian Tradition, Obergefell, and the Constitution Itself as “Dignity Clause” (2017) (analyzing the Supreme Court decision in Obergefell v. Hodges, specifically Justice Kennedy’s view on the dignity of marriage equality as a constitutional value and reviewing his arguments through Hawaiian culture and tradition)
  4. Zoltán Szente and Fruzsina Gárdos-Orosz (eds.), New Challenges to Constitutional Adjudication in Europe. A Comparative Perspective (2018) (examining how economic, social and political issues have affected constitutional review by Constitutional Courts across Europe, by the European Court of Justice and the European Court of Human Rights)
  5. Bérénice Boutin, Responsibility in Connection with the Conduct of Military Partners (2018) (providing a study on States and international organizations’ responsibility for the conduct of military partners when engaging in military operations)
  6. Abber R. Gluck and Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals (2018) (offering a detailed study on how the interpretative approach followed by appellate judges differs from that of the Supreme Court)
  7. Ravi Amarnath and Brian Bird, Prayer for Relief: Saguenay and State Neutrality Toward Religion in Canada (2018) (analyzing a relevant decision of the Supreme Court of Canada, which ruled that the State cannot favor any religion)
  8. Seth Davis and Christopher A. Whytock, State Remedies for Human Rights (2018), (challenging the dominant view among scholars on human rights remedies, arguing that state law and courts may provide remedies for human rights violations)
  9. Christopher P. Banks (eds.), Controversies in American Federalism and Public Policy (2018) (presenting a collection of contributions analyzing the effects that federalism and Supreme Court jurisprudence on the matter have on governments)

Call for Papers and Announcements

  1. The University of Milan (Italy), invites submission for the first edition of the doctoral seminar in Public, International and European Law, on the theme: “Big Data and Law: New Challenges Beyond Data Protection”. Candidates will have to submit an abstract no longer than 800 words by April 30, 2018.
  2. The Exeter Law Review invites submission for its Volume 44 (2018). The deadline for submissions is March 31st, 2018. Essays should be of 5000 to 7000 words, whereas articles should be between 8000 and 20000 words.
  3. The Research Group on Constitutional Responses to Terrorism of the International Association of Constitutional Law invites submissions of abstracts for the dedicated workshop within the Xth World Congress of Constitutional Law, to be held in Seoul on 18-22 June 2018. The deadline for submission is March 30, 2018.
  4. The European China Law Studies Association and the University of Turin (Italy), invite scholars to submit papers for the 13th annual conference. Abstracts should be submitted before April 30, 2018.
  5. Registration to the 2018 Summer School on Law and Logic held by the European University Institute and by the Harvard Law School in Florence is still open. Applications will be accepted until March 29, 2018.
  6. VRÜ/Law and Politics in Africa, Asia and Latin America welcomes submissions for the special issue of the review: The Indian Supreme Court in Crisis? Abstracts up to 750 words need to be sent, with the scholar’s CV, before April 20, 2018.
  7. Submissions for the International Conference “The Belt and Road Initiative and Global Governance” are open. Abstracts of no more than 500 words should be sent no later than April 1, 2018.

Elsewhere Online

  1. Kim L. Scheppele and Laurent Pech, Is There A Better Way Forward?, Verfassungsblog
  2. Christina Eckes, Don’t Lead with Your Chin! If Member States Continue with the Ratification of CETA They Violate European Union Law, European Law Blog
  3. Paul Strauch and Beatrice Walton, Active Hostilities and International Law Limits to Trump’s Executive Order on Guantanamo, EJIL: Talk!
  4. Konstantin Gerber, Free, prior and informed consent of indigenous peoples: a fundamental right, Blog of the IACL, AIDC
  5. Pierre de Vos, On Malusi Gigaba, the VVIP Terminal, and lies told to the Court, Constitutionally Speaking
  6. Pietro Faraguna, Constitutional Rights First: The Italian Constitutional Court fine-tunes its “Europarechts-freundlichkeit”, Verfassungsblog
  7. Meg Russel and Jack Sheldon, What an English Parliament might look like – and the challenges of giving it proper consideration, Constitution Unit, UCL
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Published on March 19, 2018
Author:          Filed under: Developments
 

Return of Judicial Power: Religious Freedom and the Tussle over Jurisdictional Boundaries in Malaysia (I-CONnect Column)

—Jaclyn L. Neo, National University of Singapore Faculty of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Indira Gandhi (not the former Indian Prime Minister) is a mother of three children who has not seen her youngest child since the child was barely one year old. That was nine years ago. Her now ex-husband had then unilaterally converted their three children to Islam and obtained ex-parte custody orders from the Syariah court. Indira Gandhi filed suit in the civil courts to quash the unilateral conversions and obtained a competing custody order from the High Court. She sought to enforce the custody order and compel her husband to produce her youngest child but was unsuccessful. Her two older children were with her when the initial Syariah court orders were obtained, and remained with her throughout her long legal battle. The Court of Appeal overruled the High Court, and the matter was finally decided by the Federal Court, which in turn overruled the Court of Appeal, in January 2018.

The judgment in Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & or[1] was a much awaited one. The Federal Court quashed the conversion certificates of the three minor children on the basis that the constitution requires the consent of both parents (and not just one parent) for conversion of minors. Under Article 12(4) of the Federal Constitution of Malaysia, “the religion of a person under the age of eighteen years shall be decided by his parent or guardian.” The decision is an important vindication of the applicant’s rights as a parent, which also took on a gender egalitarian perspective as the applicant is a mother.

The judgment is furthermore significant because the Federal Court asserted, for the first time since 1999, that it retained jurisdiction to determine legal questions concerning matters of religious status of Muslim converts. This is a departure from several cases that also came up for consideration recently, where the courts affirmed existing doctrine that the question of a person’s personal status as a Muslim fell within the exclusive jurisdiction of the Syariah Court. This means that even where a person had publicly renounced Islam (e.g. by way of a statutory declaration), they are still bound by Islamic law until the Syariah courts ‘certify’ their conversion.[2] This is not a mere administrative procedure; statutes governing the administration of Syariah laws in some constituent states in Malaysia often empower Syariah courts to impose conditions before certifying conversions, which could include detentions and/or repentance and rehabilitation classes.[3] Consequently, although Article 11(1) of the Federal Constitution guarantees to all persons the right to profess and practice one’s religion, the civil courts in Malaysia have failed to robustly protect religious freedom of Muslims (or former Muslims) by deferring jurisdiction to the Syariah courts over matters of conversion. After all, the right to choose one’s religion, while not explicitly provided for under the Federal Constitution, is widely seen under international law as an integral aspect of one’s freedom to profess one’s religion, which is explicitly guaranteed under the constitution.

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Published on March 15, 2018
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The Holocaust Law Triggers Unanticipated Consequences

–Wojciech Sadurski, Challis Professor of Jurisprudence, The University of Sydney; Professor, Center for European Studies at the University of Warsaw; Visiting Professor, Yale Law School.

With one stroke of a pen, the Polish President Andrzej Duda in the beginning of February focused the attention of the world on three phenomena, highly embarrassing to the current Polish elite, that they would like to keep hidden from scrutiny: Polish anti-Semitism, breaches of freedom of speech, and the dismantling of Polish Constitutional Tribunal. If political scientists want to find a good illustration of the “law of un-anticipated consequences”, this is it. Even the current US administration, no great fan of promoting liberal democracy worldwide, could not keep silent about the populism in Warsaw: the combination of anti-Semitism, censorship and assaults on independence of courts compelled Secretary of State Rex Tillerson to offer a lesson to Polish government that the new law “adversely affects freedom of speech and academic inquiry.”

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Published on March 14, 2018
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