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I·CONnect

Blog of the International Journal of Constitutional Law

I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Door Opened and Left Ajar

[Editor’s Note: This is Part I in our symposium on the one-year anniversary of the Chilean Constitutional Court’s abortion decision. The Introduction to the symposium is available here.]


Blanca Rodriguez-Ruiz, University of Seville

The recent decriminalisation of abortion in Chile is indeed to be welcomed, yet it stands as a case of too little, too late. It has arrived at a time when countries are moving from decriminalisation towards time-frame regulations, which guarantee access to abortion during an initial period ranging between ten and eighteen gestation weeks. Of the four possible exceptions to criminalisation, moreover, known as therapeutic, eugenic, ethical and social, Chile only contemplates the first three and does so, in the first two cases, under very restrictive circumstances. Similarly, the decision of the Chilean Constitutional Court on these exceptions has been issued decades after wider cases of decriminalisation, more recently also time-frame approaches to abortion, have been confirmed in other jurisdictions. More in tune with its times, however, the Chilean Court’s reasoning echoes these more recent decisions.

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Published on August 1, 2018
Author:          Filed under: Analysis
 

Introduction to I-CONnect Symposium–The Chilean Constitutional Court’s Abortion Decision: Five Perspectives

[Editor’s Note: I-CONnect is pleased to feature a special symposium as we approach the one-year anniversary in August of the Chilean Constitutional Court’s abortion decision. The symposium will feature six parts, including this Introduction. We are very grateful to Professor Marta Rodriguez de Assis Machado for convening this important symposium for the benefit of the I-CONnect community and indeed for the entire field.]


Marta Rodriguez de Assis Machado, Full Professor of Law at the Getulio Vargas Foundation (FGV) Law School, São Paulo, Brazil

Last year in August 2017, the Chilean Constitutional Court ruled on the constitutionality of Bill No. 9895-11. The Bill sought to decriminalize the voluntary interruption of pregnancy on three legal grounds: when the woman is at “risk to life”; when the embryo or fetus has a congenital pathology that is incompatible with independent extrauterine life; and when the pregnancy is the result of a rape. The law had been approved in Parliament one year prior, with strong support from President Michelle Bachelet and feminist social movements that have for years campaigned against the country’s very strict legislation on the issue–one of the few countries in the world at the time that still prohibited abortion in all circumstances.

In a new front in the battle over the constitutionalization of abortion in Latin America, some Senators brought before the Court two petitions challenging the constitutionality of the Bill. The petitioners based their claim mainly on Article 19, No. 1, Paragraph 2 of the Chilean Constitution, which protects the life of the unborn. They also questioned the parts of the Bill that regulated conscientious objection, allowing it for individual doctors and medical staff, but obliging medical institutions to guarantee that the woman will have access to the procedure carried out by non-objecting professionals.

In a majority decision, the Court dismissed the petition and recognized the constitutionality of each of the three grounds.

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Published on July 31, 2018
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What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher (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 in Germany ruled that psychiatric patients cannot be restrained for more than 30 minutes without a court order.
  2. The Constitutional Court in Indeonesia once again rejected a judicial review petition to strike down the 1965 Blasphemy Law.
  3. The Constitutional Court in Romania ruled that the same-sex married couples have the right to move and reside freely in Romania if one of the spouses is a EU citizen.
  4. The Constitutional Court in Hugary decided that the proclamation of the Agreement on a Unified Patent Court is not compatible with the Fundamental Law.
  5. The Constitutional Court in Uganda ruled that the extension of the term of members of the Parliament of Uganda is unconstitutional.
  6. The Constitutional Court in South Korea ordered the government to introduce civilian forms of service for conscientious objectors and upheld that the current law requiring large grocery stores to close at least two days a month is not against the nation’s highest law.
  7. The Constitutional Court in Seychelles dismissed the case of the suspended Supreme Court judge on the grounds that the Constitutional Appointment Authority had no legal obligations to allow him to be heard.
  8. The Constitutional Court in South Africa ruled in favor of the status of labour brokers in the employment of contract employees.
  9. The Constitutional Court in Ecuador, in a landmark pollution case, rejected the Chevron’s final appeal that found the company deliberately dumped billions of gallons of toxic oil waste onto Indigenous lands in the Amazon rainforest.
  10. The Constitutional Court in Italy ruled that requiring foreigners to have long-term residence to gain access to low-income rent subsidies is ”illegitimate“.
  11. The Supreme Court in the United Kingdom ruled that a woman must stay in an unhappy marriage.
  12. the Supreme Court in India observed that essential religious practices, if biased, can be struck down as unconstitutional if they discriminate on grounds of caste ox sex.
  13. The European Court of Justice upheld that European courts can block extradition requests from Poland citing the interference in the independence of the judiciary and concerns over a fair trial.

In the News

  1. The Romanian President challenged the bills changing the criminal code and the law for combating corruption, recently adopted by the Parliament, before the Constitutional Court of Romania.
  2. Albania’s vetting process showed many judges in Albania are unfit for their posts thus leaving albanian courts unable to work.
  3. The ex-Cataluña leader set to return to Belgium while Spain’s Constitutional Court examines appeal.
  4. A parliamentary committee confirmed the appointment of three Supreme Court justices in South Korea.
  5. The former South Korean President was sentenced to eight more years in prison following her involvement in a 2016 corruption scandal.
  6. The president of Peru’s Supreme Court resigned over tapes scandal.
  7. The president of Egypt appointed new chief for the Supreme Constitutional Court.
  8. Turkey’s parliament ratified a controversial anti-terror bill, which strengthens the authorities’ powers in detaining suspects and imposing public order.
  9. The poor attendance of MPs in the Malaysian parliament sparked a debate.
  10. The New Zeland Parliament passed legislation which will provide victims of domestic violence with 10 days of paid leave a year.
  11. The European Parliament acknowledged that cryptocurrencies can be used as another form or substitute to money.
  12. The upper chamber of Poland’s parliament approved new legislation to accelerate changes in the Supreme Court.
  13. The president of Venezuela announced that the national currency will be replaced with a new one that will reportedly be tied to its controversial “petro” token.
  14. The International Court of Justice found that the United Arab Emirates acted against the International Convention on the Elimination of All Forms of Racial Discrimination when it ordered all Qatari citizens to leave the country within fourteen days in June of 2017.

New Scholarship

  1. Richard Albert, Formal Amendment Rules: Functions and Design, in Routledge Handbook of Comparative Constitutional Change (Xenophon Contiades & Alkmene Fotiadou, eds., forthcoming) (interrogating the functions of formal amendment rules and critiquing existing classifications of their design).
  2. Khalil Asem, Courting Economic and Social Rights in Palestine: Justiciability, Enforceability and the Role of the Supreme Constitutional Court, Journal Sharia and Law (forthcoming 2019 (discussing discuss whether economic and social rights constitute fundamental rights in Palestine as a result of their entrenchment in the constitutional text, the Basic Law of the Palestinian Authority).
  3. Khalil Asem, Citizenship, in The Max Planck Encyclopedia of Comparative Constitutional Law (2017) (discussing the meaning and purpose of citizenship, ways to access and lose citizenship by putting forward further questions which need to be tackled by jurisdictions and courts).
  4. Martin Belov (ed.), About Global Constitutionalism and Its Challenges to Westphalian Constitutional Law, (2018) (assessing the structural and functional transformations in the Westphalian constitutional tradition produced by the emergence of supranational and global constitutionalism).
  5. Donal Coffey, ‘The Right to Shoot Himself’: Secession in the British Commonwealth of Nations, (The Journal of Legal History (2018) (looking at the doctrine of secession in the British Commonwealth of Nations from a comparative constitutional law context, using constitutional theory in the UK, the Irish Free State, South Africa, Burma, and India to trace the legal history of the doctrine).
  6. Ian Forrester, European Union Law in the UK after Brexit, Judicial Review (2018) (considering some of the practical ways in which EU law will continue to affect UK citizens, businesses and officials after Brexit and commenting on the choices available to UK judges when resolving related controversies).
  7. Mathieu Leloup, Overdaad schaadt. Is de aansprakelijkheidsvordering voor fouten begaan door de hoogste rechtscolleges een uit te putten rechtsmiddel vor het ERMH? (2018) (assesing whether or not a claim for damages for torts committed by the highest courts is a domestic remedy that has to be exhausted in accordance with the article 35 of the European Court of Human Rights?).
  8. Zoran Oklopčić, Beyond the People: Social Imaginary and Constituent Imagination (2018) (questioning who is ‘the people’, how does it exercise its power, when is it entitled to exercise its rights, from where does it derive its authority, and what is the meaning of its self-government in a democratic constitutional order by exploring the ways in which theorists address the ideals of popular sovereignty, self-determination, constituent power, ultimate authority, sovereign equality, and collective self-government).
  9. Christopher Forsyth, Error of Fact Revisited: Waiting for the “Anisminic Moment”, Judicial Review (2018) (looking into errors of fact made by administrative decision-makers that may lead to injustice to individuals or to public authorities).
  10. Paul F. Scott, The National Security Constitution (2018) (addressing the various ways in which modern approaches to the protection of national security have impacted upon the constitutional order of the United Kingdom).
  11. Stéphanie De Somer, The powers of national regulatory authorities as agents of EU law, ERA Froum (2018) (mapping the trend of ‘empowering’ National Regulatory Authorities in the field of network regulation and some of the challenges on the level of accountability that go hand in hand with it).
  12. Boško Tripković, The Metaethics of Constitutional Adjudication (2018) (exploring the metaethical foundations of value-based arguments in constitutional adjudication).
  13. Paul Yowell, Constitutional Rights and Constitutional Design, Moral and Empirical Reasoning in Judicial Review (2018) (exploring the institutional capacities of courts for deciding the questions of moral and political controversy, including assisted suicide, data privacy, anti-terrorism measures, marriage, and abortion).

Call for Papers and Announcements

  1. The Institute of Legal and Constitutional Research welcomes submissions for „The 2019 British Legal History Conference“ on 10-13 July 2019 in St. Andrews. The proposals must be submitted no later than 15 September 2018.
  2. The International Nuremberg Principles Academy invites registrations for its „Nuremberg Forum 2018“ on 19-20 October 2018 in Nurember. The registrations must be completed online.
  3. The International Association for Philosophy of Law and Social Philosophy invites applications for the 29th World Congress „Dignity, Democracy, Diversity“ on 7-13 July 2019 in Lucerne. The deadline for submission is 31 December 2018.
  4. The Lauterpacht Centre for International Law invites applications for the seminar „On the Origins of International Legal Thought“ on 7 December 2018 in Cambridge. The proposals must be submitted no later than 31 July 2018.
  5. the Editors-In-Chiefs of the Cátedra Internacional conjunta Inocencio III welcome submissions for the Fourth International Conference of the International Chair Innocent III „Migrants and refugees in the law, Historic evolution, current situation and unsolved questions“ on 12-14 December 2018 in San Antonio in Murcia. The deadline for submission is 15 September 2018.
  6. Chankaya National Law University Patna organizes „The National Seminar on Feminine Jurisprudence and Gender Bias Laws in India“ on 29 September 2018. The proposals must be submitted no later than 26 August 2018.
  7. The Institute of Contemporary History, CEI-IUL and CEIS20-UC NOVA FCSH, ISCTE-IUL welcome submissions for the conference „A Century of Internationalisms: The Promise and Legacies of the League of Nations“ on September 19-20 2019 in Lisbon. The deadline for submission is 7 August 2018.
  8. The Department of Roman Law and Legal History at the Faculty of Law of KU Leuven invites applications for a PhD candidate in the area of European legal history. The deadline for submission is 31 October 2018. 

Elsewhere Online

  1. Gilberto M. A. Rodrigues, Are cities constiutent units in Brazil’s federalism, 50 Shades of Federalism
  2. Chien-Chih Lin, Undemocratic Constitutional Law in Taiwan, IACL-AIDC BLOG
  3. James Segan, The European Union (Withdrawal) Act 2018: Ten Key Implications for UK Law and Lawyers, UK Constitutional Law Association
  4. Ky Krauthamer, Albania in Search of Honest Judges, Tol
  5. Christian S. Monsod, State of the PH in 2018: Perils, Pitfalls of Shifting to Federalism, Phillipine Center for Investigative Journalism
  6. Cem Tecimer, The Curious Case of Article 299 of the Turkish Penal Code: Insulting the Turkish President, Verfassungsblog
  7. Kathy Gannon and Munir Ahmed, Fraud claims overshadow Pakistan’s vote for new parliament, The Washington Post
  8. Francesco Duranti, Part I: The Italian Constitution at 70, IACL-AIDC BLOG
  9. Francesco Duranti, Part II: The Italian Constitution at 70, IACL-AIDC BLOG
  10. David Moya, Are National Governments Liable if They Miss Their Relocation Quota of Refugees?, Verfassungsblog
  11. Roland Sturm, Cooperative federalism and the dominant role of consensus in German federalism, 50 Shades of Federalism
  12. Alex Huang and Jerry Zhang, Same-Sex Marriage Quagmire Tests Taiwan’s Progressive Bona Fides, TheNewsLens
  13. Ghulam Rasool Dehlvi, Pakistan Elections: How the country’s judiciary and military gagged media and influenced public opinion, FIRSTPOST.
  14. Rebecca Kuperberg and Mary Nugent, An obscure British parliamentary rule was broken. Here’s why it’s a big deal., The Washington Post
  15. Jeff John Roberts, How the Supreme Court Will Continue to Change the Workplace, Fortune
  16. Graeme Orr, Bye-bye By-Elections, Ritual and Rhytm and Voting out of Season, AUPUBLAW
  17. Scott Bomboy, The Scopes Monkey trial and the Constitution, Constitution Daily
  18. Clarissa Valli Butow, Human Rights Due Diligence, An Exercise of Extraterritorial Jurisdiction?, The Völkerrechtsblog
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Published on July 30, 2018
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The Trouble with Constituent Power in Latin America: A Reply to Joshua Braver

David Landau, Florida State University College of Law

I would like to thank Joshua Braver for his post yesterday here at I-CONnect engaging my 2012 piece on constitution-making, and am gratified that the work is still relevant and useful for ongoing debates in Latin America and globally. Braver’s own project – to reconceptualize constituent power theory so that it achieves necessary breaks with the past while also constraining “abusive” exercises of power by would-be authoritarian actors – is an important one. In this he advances a line of work engaged in by prominent scholars like Andrew Arato and Kim Lane Scheppele.

In a chapter for a forthcoming handbook on constitution-making that I am coediting with Hanna Lerner for Edward Elgar Press, I have asked two questions that are related, but distinct, from the one asked by Braver in this post: (1) what has the function of “constituent power theory” been in Latin America? (2) And is that function necessary and on balance, positive?

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Published on July 28, 2018
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Putting “Abusive Constitutionalism” and Populism in Perspective

–Joshua Braver, Tufts University

The fear of “abusive constitutionalism” has set the agenda for scholarship on popular constitution-making.  It warns of the danger that “constitutional amendment and replacement can be used by would-be autocrats to undermine democracy with relative ease.”[1] The term’s author, David Landau, and fellow traveler William Partlett, are particularly wary of the invocations of the people to call illegal constituent assemblies to create new constitutions that centralize power. Calling attention to this pernicious phenomenon has provided a valuable service to comparative constitutional law.  Yet, although they have the right diagnosis, Landau and Partlett are prescribing the wrong medicine, namely the near or complete discarding of constituent assemblies, of popular authorship, and of the pursuit of just change.

In this blog post, I put “abusive constitutionalism” in perspective.  Its solutions are unviable and needlessly conservative.  Its cure is almost as problematic as the disease. Like Landau, I focus on post-Cold War South America and will also take note of post-communist constitutional transitions spurred by the fall of the Soviet Union as discussed by Partlett.  For reasons of convenience and because of their efforts to limit constitutional change to primarily legal avenues, I shall refer to Landau, Partlett, and like-minded authors as “legalists.”[2]

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Published on July 27, 2018
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Dominant Assumptions: Reading Between the Lines of a New South African Party Funding Decision (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.]

What a difference a few years can make.

Some months back, I wrote here about the change in the air following the departure of former South African President Jacob Zuma.[1] A recent judgment of the Constitutional Court reflects the change, in one respect perhaps more transparently than some judges may like, but also in a way that might signal some deep stirrings in a dominant party system.

My Vote Counts v Minister of Justice and Constitutional Development is a decision about the right of voters to information about political parties’ sources of funding. The judgment recognizes this right, and gives Parliament 18 months to give legislative effect to it.[2]

But the result itself is far from the judgment’s most interesting feature. This is actually the second time the issue has come to the Court, and it got rather different handling last time.

Back in September 2015, with President Zuma’s corruption rampant but his political position not yet dire, the Court, by 7-4, sent the case away. The main reason was subsidiarity: the litigant had sought to rely directly on the s 32 constitutional right of access to information, instead of proceeding via a statute that gives effect to the s 32 right, the Promotion of Access to Information Act (PAIA). The applicant was told to start again in a lower court.[3]

This argument was always running into trouble. PAIA was never intended to be a way to make general information about party donations continuously available to the public at large. In lots of ways it just doesn’t fit; it is for other important things. So this was a case of a legislative omission, a failure to give effect to the s 32 right that wasn’t really about any defect in PAIA itself (which is why the litigant had not challenged PAIA constitutionality).[4] But seven judges nevertheless invoked subsidiarity and sent the 2015 case away.

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Published on July 26, 2018
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Perspectives on Hong Kong Constitutional Law–Views from Law Students

Editors’ Note: We are pleased to feature these two posts on Hong Kong Constitutional Law, authored by students learning the subject under the supervision of Professor Rehan Abeyratne at the Chinese University of Hong Kong. Below, Professor Abeyratne first offers a brief introduction; the two student posts follow.


Introduction to Hong Kong Constitutional Law Student Series

–Rehan Abeyratne, Assistant Professor of Law, Chinese University of Hong Kong

Students in my first-year Hong Kong Constitutional Law course, working in groups of four, were asked to identify a political or social problem in Hong Kong, frame it in constitutional terms, and devise possible remedies or solutions. They wrote up their findings in 1,000-word posts that were published on our internal class blog.

The ICONnect editors have kindly agreed to publish two of these posts. The first post analyzes the limited space for civil disobedience in light of recent political events and judicial decisions. The second post examines the constitutional implications of the co-location agreement that permits Mainland Chinese authorities to exercise jurisdiction over some parts of Hong Kong designated for the impending Guangzhou-Shenzhen-Hong Kong Express Rail Link.

These posts reflect the fraught state of public law in Hong Kong today, twenty years after it became a Special Administrative Region of the People’s Republic of China. They also shed light on how to preserve Hong Kong’s high degree of autonomy and the political freedoms protected by the Basic Law.


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Published on July 24, 2018
Author:          Filed under: New Voices
 

What’s New in Public Law

Vicente F. Benítez R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana

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 Canada ruled that the province of British Columbia does not have to grant access to a tobacco company to the information contained in the province’s health databases.
  2. The Constitutional Court of Ecuador rejected an appeal filed by Chevron which sought to reverse a $9.5bn judgement for polluting the Amazon rainforest.
  3. The Supreme Court of India decided to hear a case concerning a governmental proposal to monitor social media, and expressed concerns over the possibility of creating a surveillance state.
  4. The Constitutional Court of Uganda is set to deliver a judgement on the constitutionality of a constitutional amendment that, inter alia, repealed age limits for candidates seeking to run for the presidency.
  5. The Court of Cassation of Italy held that telling migrants to “go away” is racist.
  6. The Spanish Constitutional Court suspended a motion passed by the Catalonian Parliament aimed at resuming the process towards independence.
  7. The Supreme Court of India asked Parliament to enact proper laws in order to tackle the rise of mob lynching cases.
  8. The European Court of Human Rights concluded that Russia breached the European Convention on Human Rights due to the degrading treatment given in prison to members of Pussy Riot, and due to its failure in prosecuting the murderers of journalist Anna Politkovskaya.
  9. The German Constitutional Court upheld the imposition of public broadcasting fees on primary dwellings as well as on the commercial and non-private sector. However, the Court ruled that the said imposition on secondary dwellings is not compatible with the Basic Law.
  10. The Supreme Court of India ruled that prohibiting women from entering into temples in Sabarimala is discriminatory.
  11. The Supreme Court of California blocked a ballot proposal to divide the state of California into three new states.
  12. The German Constitutional Court dismissed a challenge against the construction of a pipeline intended to pump gas from Russia to Germany.

In the News

  1. India’s Supreme Court Justice Ranjan Gogoi declared that a “revolution, not [a] reform” is required to maintain the judiciary’s service in favor of the common people of India.
  2. The Council of Europe’s Venice Commission concluded that the proposed reforms to the judiciary in Romania could undermine judicial independence.
  3. Opposition parties in South Sudan decried Parliament’s move to extend President Salva Kiir’s tenure.
  4. The leader of Philippines’ Senate Majority, Senator Juan Miguel Zubiri, asserted that the Senate should not rush to approve the amendment that aims to establish a federal regime, while the majority of the people disagree with such a constitutional change.
  5. The Government of Cuba unveiled a constitution’s draft proposal to replace the 1976 Constitution. The draft creates the post of prime minister and recognizes private property, among other things.
  6. Constitutional law experts joined opposition leader Raila Odinga’s call for amending the Kenyan Constitution.
  7. Hungarian Foreign Minister, Péter Szijjártó, announced that Hungary is preparing to withdraw from the United Nations migration pact.
  8. The President of Eritrea, Isaias Afwerki, expressed his enthusiasm about the reestablishment of diplomatic relations between his country and Ethiopia.
  9. In the wake of the new tariffs imposed on Canadian products by the U.S., the Prime Minister of Canada, Justin Trudeau, highlighted the need for fewer trade barriers between Canadian provinces.
  10. The Independent Qualification Commission of Albania dismissed four Constitutional Court judges after a vetting process, while three additional judges resigned to their posts. As a result, only two Court’s judges remain in office.
  11. The Polish Supreme Court judge, Malgorzata Gersdorf, claimed that her tenure ends in 2020, in response to the government’s contention according to which it has already expired. Meanwhile, the Parliament is debating a bill intended to establish a quick procedure to fill judicial vacancies, and to appoint a new Supreme Court President.
  12. The Parliament of Egypt passed a law preventing senior military officers from being prosecuted.
  13. The Hong Kong security secretary, John Lee, said that the government is considering the possibility of banning the separatist Hong Kong National Party.
  14. The Minister of Justice and Equality of Ireland, Charles Flanagan, published the legislation attempting to repeal the constitutional ban on blasphemy.
  15. The Turkish government has proposed a new bill to maintain, during three years, some measures implemented during the two-year-long state of emergency which ended on July 19, 2018.
  16. The Parliament of Israel approved a basic law declaring the state of Israel as the nation-state of the Jewish people.
  17. The European Commission referred Hungary to the European Court of Justice for its domestic laws’ noncompliance with EU migration and asylum rules.
  18. Pablo Llarena-Conde, judge of the Spanish Supreme Court, revoked the extradition requests filed against six Catalonian separatist leaders, including former President of the Government of Catalonia, Carles Puigdemont.
  19. WhatsApp was warned by the Information and Technology Ministry of India about the possibility of being sued in case the platform does not take further steps to tackle the spread of false viral messages that have provoked lynchings around the country.
  20. Duberli Rodríguez, President of the Peruvian Supreme Court, resigned to his post amidst a corruption scandal involving alleged payments to obtain favorable judicial decisions.
  21. The Organization of American States condemned the violence in Nicaragua committed against members of the Catholic clergy and against protesters.

New Scholarship

  1. David Landau, Yaniv Roznai & Rosalind Dixon, Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America, in Alexander Baturo & Robert Elgie (eds), Politics of Presidential Term Limits (2018-forthcoming) (examining the interaction between term limit provisions and the unconstitutional constitutional amendment doctrine in Latin America, and arguing that transnational anchoring holds some promise in clarifying the proper scope of control of constitutional change regarding term limits)
  2. Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy (2018) (showing how constitutional arrangements can hinder or hasten democratic decline, and proposing some practical steps to design laws and constitutional rules capable of managing the risk of democratic decline)
  3. Mara Malagodi, Challenges and opportunities of gender equality litigation in Nepal, International Journal of Constitutional Law (2018) (explaining the pivotal role the Supreme Court of Nepal has played in advancing the rights of Nepali women)
  4. Marco Goldoni & Michael A. Wilkinson, The Material Constitution, Modern Law Review (2018) (offering a theory of the material constitution, and outlining the four ordering forces behind the idea of the material constitution)
  5. Richard S Kay, Formal and Informal Amendment of the United States Constitution, The American Journal of Comparative Law (2018) (analyzing Article V of the U.S. Constitution, possible limits to the amendment power, and alternative channels of constitutional change)
  6. Anna Sledzinska-Simon, The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition, in David Kosař (ed), special issue of the German Law Journal on The Rise and Fall of Judicial Self-Government in Europe (2018-forthcoming) (arguing that the judicial reform introduced in 2017 in Poland marks the end of the judicial self-government as we know it)
  7. Mathias Reimann, Bilingual Legal Education in the United States: The Deficient Status Quo and a Call for More Action, The American Journal of Comparative Law (2018) (claiming that U.S. Law Schools should make a greater effort to let their American students reap the benefits of foreign languages, and to counter the negative effects of nationalism and isolationism)
  8. Anine Kierulf, Judicial Review in Norway (2018) (telling the story of Norwegian constitutionalism in light of constitutional law cases and debates, and arguing that this model of judicial review provides a useful perspective on the traditional dichotomy of American and European models of judicial review)
  9. Carlos Bernal-Pulido, Diego González, María Fernanda Barraza & Nicolás Esguerra, The State of Liberal Democracy, in Richard Albert, David Landau, Pietro Faraguna & Simon Drugda (eds), I-CONnect-Clough Center: 2017 Global Review of Constitutional Law (2018) (examining the 2017 Colombian Constitutional Court’s landmark rulings concerning the constitutionality of the constitutional amendments implementing the peace agreement between the Government and FARC, and regarding the protection of the environment vis-à-vis economic development)
  10. Graham Butler, Solidarity and its limits for economic integration in the European Union’s internal market, Maastricht Journal of European and Comparative Law (questioning the role that solidarity as a legal principle, value, and concept plays in EU law, and how far its premise can be stretched for the purposes of the EU’s internal market)
  11. Anthony Michael Kreis, Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution, The University of Pennsylvania Journal of Constitutional Law (2018) (positing an interactive theory of courts and social movements, and developing it in the framework of marriage equality cases)
  12. András Jakab, What is Wrong with the Hungarian Legal System and How to Fix it, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018 – 13 (2018) (exploring the constitution-making process of 2010-2011 in Hungary from an institutionalist perspective, and arguing that the approach to institutions by Hungarian lawyers fails to recognize the existence of certain components which are essential to institutions such as the actual practices of rules and some narratives)

Calls for Papers and Announcements

  1. The Laureate Program in Comparative Constitutional Law of Melbourne Law School invites outstanding female doctoral and female early career researchers to apply to the 2019 Kathleen Fitzpatrick Visiting Fellowships in Comparative Constitutional Law. Interested researchers must submit their applications by 2 September 2018.
  2. The University of Leipzig calls for speakers for its 1st International Summer School on Human Rights Protection under the ECHR, to be held in September 2019. Applications should be sent by July 31, 2018.
  3. The University of Salzburg invites submissions for its forthcoming workshop on Fiction and Law. The deadline for submissions is July 25, 2018.
  4. The Institute for International Law and European Law at the University of Göttingen invites contributions for its upcoming 2019 ESIL Research Forum focused on “The rule of law in international and domestic contexts: synergies and challenges”. Scholars must submit abstracts of proposed papers by September 30, 2018.
  5. The European University Institute calls for applicants to the Max Weber Programme for Postdoctoral Studies. Applications should be sent by October 18, 2018.
  6. The Centre of Law and Society at Cardiff University invites early career scholars and emerging researchers to apply to the CLS research visitor fellowships in the academic year 2018/19. Applications should be submitted by September 15, 2018.
  7. Católica Law Review (legal journal of the Católica Research Centre for the Future of Law of the School of Law of Universidade Católica Portuguesa) is currently inviting submissions for the journal’s special issue on Public Law. Interested scholars should send their contributions no later than September 30, 2018.
  8. TC Beirne School of Law at The University of Queensland convenes a Research Seminar on ‘Constitutional Unamendability and Comparative Method’ to be held on 10 August 2018, with prof. Adrienne Stone as guest speaker.
  9. The International Association for Philosophy of Law and Social Philosophy welcomes submissions for its 29th World Congress on “Dignity, Democracy, Diversity”, to be held at the University of Lucerne on July 7-13, 2019. The deadline for submissions is December 31, 2018.
  10. The Max Planck Institute for Comparative Public Law and International Law calls for engaged listeners to participate in its fourth workshop on the Law of Peace and War which will take place on November 8-9, 2018. Interested participants should send their applications by October 1, 2018.
  11. The Centre on Constitutional Change (University of Edinburgh) invites abstract proposals for its workshop entitled “Majority Nationalism in Plurinational States: Responding to Challenges from Above and Below”, that will take place on February 25-27, 2019. Abstracts must be sent on or before September 15, 2018.
  12. The University of Sheffield seeks to fill a Senior-Lecturer-in-Law position and invites applicants with research interests focused on UK constitutional law, UK administrative law, Comparative public law, Constitutional history, and/or Constitutional theory. Interested academics should apply by August 16, 2018.

Elsewhere Online

  1. Djordje Gardasevic, Croatia’s constitutional dilemma: Popular initiatives versus minority rights, Constitutionnet
  2. Akhil Reed Amar, A Liberal’s Case for Brett Kavanaugh, The New York Times
  3. Upendra Baxi, A constitutional renaissance, The Indian Express
  4. Tom McCarthy, Is John Roberts poised to become the supreme court’s key swing vote? The Guardian
  5. Jürgen Habermas, Are We Still Good Europeans? Social Europe
  6. Ellen T. Tordesillas, Landmines in the Duterte draft Constitution, ABS-CBN
  7. Rokhaya Diallo, France’s dangerous move to remove ‘race’ from its constitution, The Washington Post
  8. Paul Bovend’Eert, How the Dutch Cannot Make Up Their Minds on Accepting Referendums, IACL-AIDC Blog
  9. Alberto Alemanno, Time for Europe to embrace democracy, Politico
  10. Peter Ramsay & Chris Bickerton, Brexit: Facing up to sovereignty in Ireland, The Irish Times
  11. Pierre de Vos, Why the Failure of Presidents Zuma and Ramaphosa to Deal with the Secrecy Bill is Constitutionally Delinquent, Constitutionally Speaking
  12. Lana Borenstein, The Senate’s amendments to the Cannabis Bill: Just a ‘sober second thought’ or high on power? Centre for Constitutional Studies
  13. Morris Odhiamb, Kenya: Only civil society can stop elites changing the constitution, African Arguments
  14. Leah Trueblood, More Good Days for Democracy: The Report of the Independent Commission on Referendums, U.K. Const. L. Blog
  15. David Bilchitz, Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights, Völkerrechtsblog
  16. Andrew Keane Woods, Do Constitutional Rights and Human Rights Matter? Lawfare
  17. Meg Russell, The failed Senate reform in Italy: international lessons on why bicameral reforms so often (but not quite always) fail, The Constitution Unit
  18. Shireen Morris, The Uluru Statement from the Heart: Why I have hope, Pursuit
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Published on July 23, 2018
Author:          Filed under: Developments
 

Call for Papers and Panels–Inaugural Conference of the Italian Chapter of the International Society of Public Law (ICON-S)

Call for papers and panels
Inaugural conference of the Italian Chapter of the International Society of Public Law (ICON-S)
Unity and fragmentation within and beyond the State
(Unità e frammentazione dentro e oltre lo Stato)
Rome, Italy 23-24 November 2018

On the occasion of the inauguration of the Italian Chapter of the International Society of Public Law (ICON-S), we are happy to circulate the call for papers and panels for the first annual conference of the Italian Chapter, on the theme “Unity and fragmentation within and beyond the State”, which will take place in Rome on November 23-24, 2018, featuring a keynote address by Prof. Joseph H.H. Weiler. The full text of the call (Italian version) is available here.

Challenges to political (and legal) unity and cohesion are proliferating both within and beyond state borders. If on the one hand national borders are eroded and trespassed by both people and technologies, as a consequence of globalization, on the other hand they are simultaneously being reinforced, in times of migration, nationalism and secessionist movements. Within state borders, in particular, it is possible to witness conflicts among different levels of government and between center and periphery. What are the effects of these tensions on the constitutional framework? What is the role of political, administrative and judicial institutions? What tools and decision-making techniques are adopted? To what extent the relationship between unity and fragmentation within and beyond the State is affecting rights protection (e.g. health and education)? Which welfare and economic policies are necessary to enhance cohesion within national communities?

In the context of international and supranational organisations, including the European Union, it is possible to observe an increasing systemic fragmentation, whereby different interpretations of common rules are provided by Member States as a way to protect their national constitutional identities. Does this dynamic represent a threat to the European integration project? How much diversity can be tolerated by the Union, without jeopardizing its unity and the effectiveness of its rules?

Possible topics include – but are not limited to – the evolution of the concept of sovereignty; the relationship between international and domestic legal systems; the constitutionalisation of international law and the proliferation of transnational regimes; the identification of national borders and border control; freedom of movement within and beyond the State; nationalism, populism and constitutional powers; the proliferation and fragmentation of the sources of law and regulation.

The conference is open to scholars (including Ph.D. candidates and early career researchers) in the fields of law, political science and economics. Abstracts (800 words) and panel descriptions (1000 words) should be submitted by September 14th, 2018 at 2018@icon-s.it. Panels can include up to 5 participants (chair/discussant included) and should respect the principles of intergenerationality, interdisciplinarity and gender balance. Successful applicants will be notified by September 30th, 2018.

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Published on July 20, 2018
Author:          Filed under: Developments
 

Now Available: The I·CONnect-Clough Center 2017 Global Review of Constitutional Law

Richard Albert, The University of Texas 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 the second edition of the I·CONnect-Clough Center Global Review of Constitutional Law (ISBN: 978-0-692-15916-3). The report may be downloaded here for free.

This 2017 edition of the Global Review of Constitutional Law assembles reports from 61 jurisdictions. The reports offer a detailed but relatively brief overview of constitutional developments and cases in the past calendar year. This year’s coverage has grown from the 44 jurisdictions covered last year.

The reports are authored by scholars or judges, and sometimes both together as part of a team.

From the beginning, our objective for this first-of-its-kind volume has been to 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 are immensely grateful to the Clough Center for the Study of Constitutional Democracy at Boston College, directed by Professor 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, and for all he has done to nurture this collaboration with the care and support that he has invested in the many other successful projects he has innovated in his capacity as Director of the Clough Center and as a scholar of legal theory, EU law, and comparative public law.

We give great thanks to our many distinguished country authors for producing their informative and insightful reports.

We thank our co-editor Simon Drugda for his instrumental role in coordinating the commissioning of these reports,

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 inspired this idea for a Global Review, has served as a model for others, and we are where we are today because of their initiative.

We thank also Gaurie Pandey, Manager of Creative Services at the Center for Centers, for creating a truly fabulous design for this volume from cover to cover. She has been wonderful in every way, and we are in her debt for lending us her time and creativity.

Finally, we thank Gráinne de Búrca and Joseph Weiler, Co-Editors-in-Chief of I·CON, for accepting our recommendation to publish three of these outstanding contributions in the most recent issue of I·CON.

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

The I·CONnect-Clough Center 2017 Global Review of Constitutional Law (ISBN: 978-0-692-15916-3) is available for free here.

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Published on July 19, 2018
Author:          Filed under: Developments