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

Developments in Italian Constitutional Law: The Year 2016 in Review

[Editor’s Note: Today we publish the 2016 Report on Italian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available in a smaller file size for downloading and emailing: https://ssrn.com/abstract=3014378.]

–Pietro Faraguna (LUISS University of Rome), Michele Massa (Catholic University of the Sacred Heart, Milano), Diletta Tega (University of Bologna), coordinated by Marta Cartabia (vice-President of the Italian Constitutional Court)

I. Introduction

The Constitution of Italy entered into force on January 1, 1948, following its adoption by a popularly elected Constituent assembly, which led Italy out of a difficult transition from the fascist regime to a full-fledged democracy. The Constitution is based on a series of fundamental principles that are common heritage of liberal states: separation of powers, checks and balances, due process of law, universal suffrage, and fundamental freedoms (of expression, of association, of assembly…). Among the most significant departure from the previous regime – which was characterized by a flexible, liberal constitution (Statuto Albertino) –  was the incorporation of social rights into the new Constitution, and the safeguarding of the Constitution through its rigidity. Consequently, constitutional provisions have a higher rank than ordinary legislation and this higher rank is safeguarded through judicial review of legislation. The establishment of the Italian Constitutional Court (ICC) was one of the most impacting institutional novelty by the Constitution. It represented one of the earliest examples of the post-war European model of constitutional adjudication.[1] However, its implementation was far from an obstacle-free route.[2] The clearest sign of the distrust of political actors towards this institutional novelty was the delayed implementation of the ICC, which was only able to pronounce its first judgement in 1956. In 2016, the Court celebrated the 60th anniversary of its first judgement. It is undisputed that the Court has become one of the most influential and stable authorities in the Italian constitutional architecture. Although, there has been many changes in 60 years, one permanent character of the Court’s activity has been its “relational character”[3]: the ICC has always maintained an open and relational approach to other constitutional actors, both domestically and in the supranational and international dimension. This trend was also present during 2016 and emerges from the case law reported here.

This report firstly provides a brief introduction to the Italian Constitutional system, with a particular emphasis on the system of constitutional justice (section II). Secondly, the report contains a narrative exposition of two particularly important controversies from 2016 (section III). In these decisions, the ICC actively engaged as the supranational dimension of constitutional law, showing at the same time a high level of compliance to the principle of openness towards supranational and international law, and a firm stance in upholding the complex substantive and institutional balance of the Italian Constitution. In section IV, the report provides an overview of landmark judgements adopted by the ICC in 2016. The last section draws some conclusions.

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Published on August 13, 2017
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Constitutional Fidelity and the Polish Constitution

–Tomasz Tadeusz Koncewicz, University of Gdańsk, 2017-18 LAPA Fellow, Princeton University, currently Visiting Professor, Radzyner Law School, IDC Herzliya

Tread softly because you tread on my dreams
–W.B. Yeats, The Cloths of Heaven

Recent weeks have seen the biggest mass protests in Poland since 1989. In major Polish cities thousands were out in the streets and made their voices heard. People were protesting against the relentless capture of their public institutions, most notably the courts.

The brutal assault on the Supreme Court and the judiciary sparked the popular revolt, forcing President Duda to veto the draft laws on the Supreme Court and the National Council of the Judiciary (on the legislative scheme to bring the judiciary to heel, see here). This public defiance was not spurned by the opposition parties that suffer from their own credibility issues.

What should we make of this popular mobilization after two years of relentless capture and accompanying passivity of the citizenry? These protests were apolitical and political at the same time, creating a synergy not seen in Poland (or even in this part of Europe) for years. Something constitutionally momentous may be happening: a constitutional moment in the defense of the Constitution and the integrity of the legal system.  As such,  it forces constitutionalists in Poland to move beyond mere textual exegesis and to focus more on the constitutional context. The former has always been the dominating feature of constitutional analysis, yet it is an inadequate tool to explain what has happened in Poland over the last weeks. It is the latter–context–that will will help us start connecting the dots to understand the forces behind the protests.

The context is defined here as constitutional fidelity to the values underlying the constitutional document. My argument here is that constitutional fidelity provides the conceptual framework for thinking of the rule of law and separation of powers, appreciating it, and in the end defending it, at times of constitutional capture and paranoia.

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Published on August 11, 2017
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Five Questions with Vlad Perju

—Richard Albert, Boston College Law School

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

This edition of “Five Questions” features Vlad Perju, Director of the Clough Center for the Study of Constitutional Democracy and Professor of Law at Boston College Law School. His full bio follows below:

Vlad Perju is the Director of the Clough Center for the Study of Constitutional Democracy at Boston College and Professor of Law at Boston College Law School. His primary research and teaching interests include the law of the European Union, comparative constitutional law and theory, international and comparative law and jurisprudence.

Before joining the Boston College faculty in 2007, Perju was awarded a doctorate from Harvard Law School under the supervision of Professor Frank Michelman with a dissertation entitled “The Province of Cosmopolitan Jurisprudence: Constitutional Foundations”. He earned two law degrees from the University of Bucharest and the University of Paris 1 Panthéon-Sorbonne, an LLM degree summa cum laude from the European Academy of Legal Theory in Brussels, Belgium and graduated from the LL.M. program at Harvard (degree waived).  While at Harvard, he served as a Byse Fellow, a Safra Fellow at the Edmond J. Safra Foundation Center for Ethics and a Research Fellow in Amartya Sen’s Project on Justice, Welfare and Economics.

Perju was a Visiting Associate Professor at Harvard Law School in the Fall Term 2011 and a Visiting Professor of the Theory of the State at the European Academy of Legal Theory in Brussels, Belgium.

Perju was awarded the 2009 Ius Commune Prize for his article entitled “Reason and Authority in the European Court of Justice” (49 Virginia Journal of International Law 307). His paper “Cosmopolitanism and Constitutional Self-Government” was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum. In the Fall 2009, Professor Perju was a research fellow at NYU Law School. He has been an affiliate of the Minda de Gunzburg Center for European Studies at Harvard University since the Spring 2010.

In 2008 Professor Perju was appointed by the President of Romania to a seven-member Commission on Constitution Reform. He remains actively involved in the process of constitutional reform both in Romania as well as in the European Union. Some of his commentary can be found here (in English) and here (in Romanian).

At Boston College, he teaches courses in the Law of the European Union, American and Comparative Constitutional Law, The Past and Future of the State, as well as advanced seminars on European Integration and Modern Legal Theory.

1. Tell us about something you are working on right now.

Two projects. The first develops a doctrine of transnational structural norms in constitutional law. The context for this project is the erosion of constitutional democracy and my question is how the judiciary could use this new doctrine to protect the integrity of structural features such as judicial independence through reliance on their transjurisdictional dimension. The second project revisits the traditional understanding of supremacy of EU law. Existing accounts conceptualize supremacy as necessarily bidirectional, in the sense that the reception of EU supremacy within national jurisdictions is not external but constitutive of the claim to supremacy itself. I have serious doubts about the soundness of this approach, both normatively and descriptively. This paper is the third installment in my larger attempt to revisit some of the fundamentals of European constitutionalism. Another work, which I completed this summer, argues that human rights were present at the genesis of the European legal order, and thus did not enter European constitutionalism from municipal law, as the influential and self-serving account of the German Constitutional Court would have us believe. The other paper challenges Habermas’s influential theory of dual sovereignty in the EU as too deferential to nation-states and insufficiently attuned to the constitutional project of European unification.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I write when I’m ready to write. Unless, of course, life has other plans. And, having small children, life frequently does have other plans. When that happens, I write whenever I find time.  I should add that it was helpful for my writing once I realized how my various projects fit together.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

As the director of the Clough Center, which is an interdisciplinary center at Boston College, I have to be alert to new scholarship across fields. This means that my reading list is somewhat eclectic, more so than one would typically expect even from a comparative con law scholar. I can tell you that right now, for example, I’m reading recent work on the Russian revolution for a program we’re putting together this Fall, as well as Andrea Sangiovanni’s Humanity without Dignity, Daniel Ziblatt’s recent book on conservative parties and the origins of democracy.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

It’s hard to mention just one. Kant’s Perpetual Peace is a great example of putting what at the time was a bold vision of cosmopolitanism to the discipline of reason. Roberto Unger’s 1976 lectures in social theory at Harvard have also been formative, as has engagement with John Rawls’s Theory of Justice and Political Liberalism–each for different reasons. Finally, I had the good fortune to be Frank Michelman’s doctoral student, and learned from him and his scholarship the indispensable lesson of intellectual integrity in scholarly work.

5. What are some of the big questions ripe for inquiry in your area of research interest?

In European legal thought, we need to challenge the consensus around constitutional pluralism. In comparative constitutional law, we need to draw more on the venerable traditions of comparative private law as sources of insight, especially–but not exclusively–on methodological matters. Finally, in constitutional law more generally, especially in the United States, we need to offer institutional proposals and to defend the theoretical foundations of cosmopolitan alternatives to constitutional nationalism.

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Published on August 10, 2017
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Virtual Bookshelf–Siren Songs or Legal Authority?: A Brief Review of “Constitutional Preambles,” by Wim Voermans, Maarten Stremler and Paul Cliteur

—Richard Albert, Boston College Law School

Samoa recently amended its constitution to declare itself a Christian state. For some, this was a curious move given that Samoa’s preamble already proclaims Christianity as the national religion. Why, then, was the amendment necessary? A recent article explains:

Samoa already had a reference to Christianity in the preamble to its Constitution, which declared that the Samoan government should conduct itself “within the limits prescribed by God’s commandments,” and that Samoan society is “based on Christian principles.”  … However, a preamble to a constitution is generally seen as a broad symbolic national statement, one of historical or cultural significance, rather than a legislative tool. What Samoa has done is shift references to Christianity into the body of the constitution, giving the text far more potential to be used in legal processes.

Samoa’s Christianity amendment draws our attention to the purpose and authority of constitutional preambles. Are they simply lofty words–a siren song of constitutions–without real world effect, or do they have a meaningful impact on the legal and political orders of any given jurisdiction?

In their new book on Constitutional Preambles: A Comparative Analysis (Edward Elgar Publishing Ltd 2017), Wim Voermans, Maarten Stremler and Paul Cliteur invite constitutional scholars to think more deeply about preambles. They examine roughly 200 preambles from around the world in an effort to enhance our traditional understanding of preambles. In their own words:

Preambles deal with beliefs and try to instill them in heads and hearts of the people. Not only do they deal with the commonly held beliefs, but also, and especially so, with the individually held ones. As siren songs, preambles try to connect the imagined ideals and beliefs of the constitutional world with the individual’s world. (p 151)

However preambles may also serve functions that extend beyond these declarations of principles devoid of legal power. For instance, the authors explain that although in the United States the preamble “cannot be considered as an independent source of law … . In France, by contrast, the Constitutional Council has declared the preamble to be an integral part of the constitution and has used it directly to review the constitutionality of legislation.” (p 4)

The authors show also that preambles are sites where designers have formally entrenched fundamental principles, others serve a distinctly expressive function related to values or identity, and still others may serve an educational function as a “bridges in time” connecting the present to the historical context from which the constitution emerged.

As new states establish constitutions and existing ones reform their own, this new book reminds us that “all preambles indicate, in one way or another, the source of authority of the constitution.” (p 153)

In their new book, Voermans, Stremler and Cliteur shine a light onto an often overlooked aspect of constitutional study and lay a strong foundation for further research into the forms and functions of constitutional preambles.

 

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Published on August 9, 2017
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Book Review: Cornelia Weiss on Helen Irving’s “Constitutions and Gender”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Cornelia Weiss reviews Helen Irving’s Constitutions and Gender (Edward Elgar 2017)]

–Cornelia Weiss, Colonel, U.S. Air Force Reserve Judge Advocate Corps*

As incredible as it seems, it was not until 1971 that the U.S. Supreme Court ever declared a statute that discriminated against women as unconstitutional.  That was Reed v. Reed, 404 US 71.  A co-author on the brief for the Appellant is the now U.S. Supreme Court Justice Ruth Bader Ginsburg.  In her brief, she included two West German Constitutional Court decisions from 1959 and 1963 in which the German Court invalidated similar gender classifications.  As she explained about her strategic choice to include these two West German constitutional law case in a brief to the U.S. Supreme Court: “I did not expect our Supreme Court to mention the German decisions, but thought that they might have a positive psychological effect.  Informed of the West German Constitutional Court’s reasoning, the U.S. justices might consider: ‘How far behind can we be.’”[1]

The 553 page Constitutions and Gender, Research Handbooks in Comparative Constitutional Law series, edited by Helen Irving of Sydney Law School, is a tool that can be used by scholars and practitioners to employ Justice Ginsburg’s approach.  Constitutions and Gender is the first handbook devoted specifically to gender and constitutions.  Based on the premise that constitutions are “gendered” (to include having a disparate or differential impact upon women and men, be it through the writing, interpretation, application, and/or internalization of constitutions), the handbook articulates original thinking that will serve as a platform for future transformative scholarship as well as constitutional law practices.  This book tackles tough questions, to include that of “culture” and “freedom of speech” – do they trump, are they subordinate, or can they be harmonized?  The analysis employed throughout Constitutions and Gender suggests that we must ask and challenge, for example, “who gets to state what culture is.”  The comparative law analysis indicates that effective approaches to grappling with the challenges of changing technology (that includes the lightening fast spread of gender hate speech) are still to be developed.

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Published on August 9, 2017
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“Quasi Constitutional” Status as *Not* Implying a Form Requirement

—Maxime St-Hilaire, Faculté de droit, Université de Sherbrooke

In his post on this blog, Adam Perry writes that the British cases on what are known in the UK as constitutional statutes (and in Canada as quasi–constitutional statutes) “have been very controversial in constitutional circles”, whereas, by contrast, “the Canadian cases caused barely a ripple.” I would like here to take up the invitation, and to throw a tiny pebble into the lake.

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Published on August 8, 2017
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What’s New in Public Law

—Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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 French Constitutional Council rendered its decision on the constitutionality of the Comprehensive Economic and Trade Agreement (CETA).
  2. The French Conseil D’état ruled that French government is under an obligation to provide water and sanitation to migrants.
  3. The German Constitutional Court ruled constitutional the federal statute regarding compulsory contributions of members of chambers of commerce and industry.
  4. The Bangladesh Supreme Court has declared unconstitutional the 16th constitutional amendment, which authorizes the parliament to impeach judges.
  5. The Supreme Court of Kenya is set to hear an appeal against the nomination for a parliamentary seat.

In the News

  1. In Ukraine, the parliament approved a new bill on the constitutional court.
  2. In Zimbabwe, a legislative bill that grants the President the power to appoint Chief Justice is awaiting presidential approval.
  3. In Liberia, legislators are considering impeachment proposal against three supreme court justices.
  4. In Venezuela, representatives were elected to write a new constitution.
  5. The Jordanian parliament voted to repeal law encouraging rapists to marry victims.
  6. President Donald Trump has signed into law new sanctions against Iran, North Korea, and Russia.

New Scholarship

  1. András Jakab, Sustainability in European Constitutional Law, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-16 (discussing the emergence of the concept of sustainability as a key constitutional concept on the European Constitutional Law.)
  2. Anna Sledzinska-Simon and Michal Ziółkowski, Constitutional Identity of Poland: Is the Emperor Putting on the Old Clothes of Sovereignty? (examining the application of constitutional identity as a judicial concept denoting both convergence and divergence with the EU standards and arguing that recent legal reforms affecting the rule of law are not merely an example of constitutional dispensation, but a return to national sovereignty.)
  3. Natalie Ram, Science as Speech, 102 Iowa Law Review (forthcoming) (establishing a framework for assessing whether and when legislatures cross the constitutional line by regulating scientific experimentation.)
  4. Yitshak Cohen, Recognition or Non-Recognition of Foreign Civil Marriages in Israel, (Yearbook of Private International Law, Volume 18 (2017) (discussing how the Israeli courts, unlike the legislature, have more of a civil orientation than a religious one toward personal status matters.)
  5. J. Michael Martin, Should the Government be in the Business of Taxing Churches?, 29 Regent University Law Review (2017) (proposing the question of whether a federal income tax should be imposed on churches.)
  6. Stijn Smet, Conscientious Objection to Same-Sex Marriages: Beyond the Limits of Toleration (2016) (arguing that the UK courts and Dutch legislator have drawn those limits at the point where civil servants cause same-sex couples expressive harm.)
  7. Fu Hualing and Jason G. Buhi, Diverging Trends in the Socialist Constitutionalism of the People’s Republic of China and Socialist Republic of Vietnam, (2017) (providing an overview to comparative study of Sino-Vietnamese comparative constitutionalism by exploring the bases of three core, substantive pillars of socialist constitutionalism through the Sino-Vietnamese comparison: insistence on Party leadership, reliance on socialist rule of law, and adaptation to populism.)
  8. Jonathan Griffiths, The Tobacco Industry’s Challenge to the United Kingdom’s Standardised Packaging Legislation – Global Lessons for Tobacco Control Policy?, The  Queensland University of Technology Law Review (forthcoming, 2017) (discussing the significance of the United Kingdom’s Standardised Packaging of Tobacco Products Regulations 2015.)
  9. Adam Perry, Pardons and Mercy, (2017) (considering whether the law’s understanding of mercy is consistent with our ordinary understanding of mercy.)
  10. Son Ngoc Bui, Globalization of Constitutional Identity, 26(3) Washington International Law Journal, 463-533 (2017) (extending Gary J. Jacobsohn’s theory of constitutional identity with an emphasis on the impact of constitutional globalization to the change of national constitutional identity, exemplified by socialist experiences).

Special Announcement from ARC Kathleen Fitzpatrick Laureate Fellowship Program in Comparative Constitutional at Melbourne Law School

The Laureate Program in Constitutional Law, led by Professor Adrienne Stone, ARC Kathleen Fitzpatrick Australian Laureate Fellow, and funded by the Australian Research Council, and is delighted to announce that applications are open for the 2018 Laureate Visiting Fellowship mentoring scheme.

The Fellowships are designed to enable a number of outstanding female doctoral and early career researchers to visit Melbourne Law School and work with Professor Stone’s Laureate Program in Constitutional Law, for up to two months. The Laureate program entitled Balancing Diversity and Social Cohesion in Democratic Constitutions,brings together leading scholars in law to enhance the capacity of constitutional law.

Funding of up to $3000 is available for Laureate Visiting Fellows in Comparative Constitutional Law, towards the costs of travel to, and accommodation in, Melbourne.  The amount will be allocated on a case by case basis. As such, applicants should consider the cost implication before applying, as there may be out-of-pocket expenses not covered by the Fellowship. Visiting fellows from outside Australia are responsible for obtaining and funding any necessary visas. Applications close on 1 October 2018. For more information about how to apply, visit our website.

Call for Papers

  1. ACTORE, the Jean Monnet Centre of Excellence of the University of Antwerp, invites submissions for a two-day Workshop on “Judicial Governance: The role of European and International Courts and their Interaction with other Actors”, to be held in Antwerp on 14-15 December 2017. The deadline for submitting abstracts (max. 1 page) is September 1, 2017.
  2. The Center for Global Constitutionalism at the WZB Berlin Social Science Center has issued a call for applications for a three-year full-time research fellow position (post-doc).
  3. The Peter A. Allard School of Law at the University of British Columbia invites applications for The Rt. Hon. Beverley McLachlin, P.C., UBC Professorship in Constitutional Law.
  4. The Department of Government at the University of Texas at Austin invites graduate student submissions for the fourth annual Graduate Conference in Public Law, to be held November 2-3, 2017.
  5. The T.M.C. Asser Institute will organize an international conference on ‘Human Dignity and Human Security in Times of Terrorism: International (Human Rights) Law Challenges and Opportunities’.
  6. The Journal of International Media & Entertainment Law (JIMEL) in association with the Southwestern Law Review and Southwestern International Law Journal invites submissions for a symposium on Global Fake News and Defamation.
  7. The American Constitution Society for Law & Policy is accepting paper proposals for a workshop on public law on January 4, 2018, at the 2018 AALS Annual Meeting in San Diego.

Elsewhere on Blogs

  1. Pierre de Vos, Distinguishing fact from fiction: What happens if a vote of no confidence succeeds?, Constitutionally Speaking
  2. Matt Belenky, Amazon, “Kill Quill,” and the Two Bills, JURIST
  3. Ewelina U. Ochab, Could the UK Lead the Efforts to Prevent and Prosecute Acts of Genocide?, OxHRH
  4. Matt Williams, How Parliament’s failure to clearly articulate immigration policy forces judges to take control, LSE British Politics and Policy
  5. David Super, Is the Republican Effort to Destroy the ACA Dead?, Balkinization
  6. Saul Cornell, Slavery and the Right to Travel Armed: A Short History Lesson, Take Care
  7. Łukasz Bojarski, A Polish Legal Road Roller: Can the Political Sentence be Stopped?, ConstitutionNet
  8. Rachel Reed, The Women Activists Working to Keep Kenya’s Election Peaceful, NewsDeeply
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Published on August 7, 2017
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Now Available: The I·CONnect-Clough Center 2016 Global Review of Constitutional Law

—Richard Albert, Boston College Law School and David Landau, Florida State University College of Law

I·CONnect is pleased to partner with the Clough Center for the Study of Constitutional Democracy to bring you a first-of-it-kind resource: the I·CONnect-Clough Center 2016 Global Review of Constitutional Law (ISBN: 978-0-692-92516-4). The report may be downloaded here for free.

The Global Review of Constitutional Law assembles reports that give readers a detailed but relatively brief overview of constitutional developments and cases in individual jurisdictions during the past calendar year, in this case 2016. Coverage in this first edition of the Global Review includes 44 jurisdictions.

We have carefully selected academic and/or judicial experts as contributors from their respective jurisdictions—and often the reports are co-authored by judges and scholars.

We hope the reports in this first-of-its-kind volume offer readers systematic knowledge that, previously, has been limited mainly to local networks rather than a broader readership. By making this information available to the larger field of public law in an easily digestible format, we aim to increase the base of knowledge upon which scholars and judges can draw. We expect to repeat the project every year with new annual reports, and we hope over time that coverage will grow to an even wider range of countries. We invite scholars and jurists from the presently non-covered jurisdictions to contact us about contributing a report in next year’s Global Review.

We thank our co-editor Simon Drugda for his instrumental role in soliciting these reports, and we thank our many distinguished country authors for producing a high-quality and useful product.

We are especially thankful to our co-editor Pietro Faraguna who, along Michele Massa (Catholic University of the Sacred Heart, Milano) and Diletta Tega (University of Bologna) under the coordination of Marta Cartabia (Vice-President of the Italian Constitutional Court), wrote the first annual review of constitutional law for Italy in 2016. Their review served as a model for others, and we are where we are today because of their model report.

We are grateful to the Clough Center for the Study of Constitutional Democracy at Boston College Law School, directed by Vlad Perju, for partnering with us in this project. Since becoming its Director, Vlad Perju has transformed the Clough Center into a leading site in the English-speaking world for the study of constitutions and constitutionalism. We thank him for sharing our vision of the possibilities for this annual volume. We are also extraordinarily grateful to Michelle Muccini of the Clough Center for marshaling her creativity to design this book from cover to cover. She has translated our scholarly content into a beautifully innovative format that has exceeded our every expectation.

Finally, we thank Gráinne de Búrca and Joseph Weiler, Co-Editors-in-Chief of I·CON, for publishing several of these outstanding contributions in the journal itself.

We invite comments and inquiries to either of us via email at contact.iconnect@gmail.com.

The I·CONnect-Clough Center 2016 Global Review of Constitutional Law (ISBN: 978-0-692-92516-4) is available for free here.

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Published on August 4, 2017
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Special Announcement–2016 Global Review of Constitutional Law–Coming Tomorrow

—Richard Albert, Boston College Law School

We are pleased to announce that I-CONnect has partnered with the Clough Center for the Study of Constitutional Democracy to bring you a first-of-its-kind resource on the state of constitutional law around the world.

The I-CONnect-Clough Center 2016 Global Review of Constitutional Law will feature reports on constitutional law developments from 44 countries around the world ranging from Germany to India, from Finland and Zambia.

We aspire to cover the entire world in this annual series. We continue to grow, and we invite scholars and jurists from our non-covered jurisdictions to join us next year. More details to come tomorrow, when we will publish the first edition of the Global Review of Constitutional Law.

For now, we thank Vlad Perju at the Clough Center for partnering with us, and we also thank all of our contributors–scholars and jurists–each of whom we will recognize tomorrow.

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Published on August 2, 2017
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The Constitutional Court of Bosnia and Herzegovina and “the Others”

–Maja Sahadžić, PhD Researcher, Government and Law Research Group, Faculty of Law, University of Antwerp

Although the Constitutional Court, ideally and ad normam, is perceived as a body which prevents discrimination, in the constitutional reality of Bosnia and Herzegovina it nevertheless reflects certain discriminatory features. A subtle ethnic opportunism has yielded a group labeled as “the Others”, with implications for their treatment at different levels of legislative and executive branches in Bosnia and Herzegovina, and also at the Constitutional Court.

The qualification “Others” in Bosnia and Herzegovina was introduced in the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (colloquially known as the Dayton Peace Agreement). Based on ethnic strongholds, Bosniaks, Croats, and Serbs were established as the constituent peoples. Due to the inability of the constitution-maker to properly label the citizens living in Bosnia and Herzegovina who do not declare themselves as the constituent peoples, fourth bests were designated as the Others.

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Published on August 2, 2017
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