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I·CONnect

Blog of the International Journal of Constitutional Law

Constitutional Tribunal in Kyrgyzstan Decides Against the Former President, Clearing the Way for His Prosecution


–Alisher Juzgenbayev, Nazarbayev University, Kazakhstan

On October 24, the Constitutional Chamber of the Supreme Court of the Kyrgyz Republic declared that the law lifting the immunity of the former President did not violate the Constitution. I observed the Chamber’s hearing and would like to share my commentary on this consequential decision.

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Published on November 5, 2019
Author:          Filed under: Developments
 

What’s New in Public Law


–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School 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 Constitutional Court of Ukraine declared constitutional the draft law on the abolition of lawyer’s monopoly.
  2. A US federal Appeals Court in Washington DC declared unconstitutional the structure of the federal tribunal reviewing the structure of patents and suggested.
  3. A US District Court declared unconstitutional legal requirement in Virginia to identify their race on marriage applications.
  4. The Constitutional Court of Belgium ruled the annual tax on security accounts unconstitutional due to the infringement of the principles of equality and non-discrimination.
  5. A Japanese court declared the vote-value disparity in House of Councillors election constitutional.
  6. The Washington State Supreme Court ruled that there is no vested right to access public records in the State.

In the News

  1. Northern Ireland abortion laws has now taken effect.
  2. Hong Kong announced the formal withdrawal of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 which had led to protests.
  3. Zambia proposes constitutional amendments altering state-religion relations and enhancing the powers of the executive vis-a-vis the legislature.
  4. The Speaker of the House of Representatives of Nigeria pledges to amend the Constitution and electoral act.
  5. Qatar is preparing for legislative elections after a 15-year delay.

New Scholarship

  1. Richard Albert, David Landau, Pietro Faraguma and Simon Drugda, I·CONnect-Clough Center 2018 Global Review of Constitutional Law, (2019) (assembling reports on constitutional developments and cases in 65 jurisdictions during the past calendar year)
  2. David Kosař, Jiří Baroš and Pavel Dufek, The Twin Challenges to Separation of Powers in Central Europe: Technocratic Governance and Populism, European Constitutional Law Review (2019)(arguing that the two major recent challenges to the separation of powers in Central Europe – the rise of the unelected and the wave of populism – are more interrelated than usually thought, and that the former in fact has greatly contributed to the latter)
  3. Jonathan Riedel, Closing the Border, New York University Law Review (forthcoming 2019) (analysing the closing of the border between the United States and Mexico in light of statutory and constitutional considerations
  4. Greg Taylor, The Constitution and the Common Law Again, Adelaide Law Review (2019) (considering how the constitution affects the common law)
  5. Fatma E. Marouf, Extraterritorial Rights in Border Enforcement, Washington and Lee Law Review (forthcoming 2019) (examining a body of cases addressing extraterritoriality issues in the border enforcement context)
  6. Francesco Duranti, The Use of Foreign Precedents in Constitutional Interpretation by the Nordic Courts, in Giuseppe Franco Ferrari (ed.), Judicial Cosmopolitanism: The Use of Foreign Law in Contemporary Constitutional Systems, (2019) (analysing the use of foreign judgments in Constitutional interpretation in a comparative perspective in Finland, Norway, and Sweden)
  7. Lionel Smith, Civil and Common Law, in Andrew Gold et al. (eds.), Oxford Handbook of the New Private Law (2020) (studying the New Private Law in light of the civil law)
  8. Paul W. Kahn, Origins of Order: Project and System in the American Legal Imagination (2019) (showing how project and system have long been at work in our theological and philosophical tradition)
  9. Lydia Brashear Tiede and Susan Achury, Challenging authorities’ (In)action via Amparos, in Susan M. Sterett & Lee D. Walker (eds.), Research Handbook on Law and Courts (2019) (defining the actions of amparo, their main features, history and remedy and discussing the impact of amparo actions on limiting government power and shaping policy).

Calls for Papers and announcements

  1. The University of Pennsylvania Law School, Princeton University, University of Illinois College of Law, and the American Society of Comparative Law  invite submissions for the Annual Comparative Law Work-in-Progress Workshop, to be held on March 26-28, 2020. The deadline for submissions is January 10, 2020. 
  2. Gonzaga University School of Law invites submissions for its 2020 Human Rights Conference on Women’s Rights as Human Rights, to be held in Florence, Italy on July 7-8, 2020.
  3. The Polish Yearbook of International Law calls for papers for its upcoming volume. The deadline for submissions is January 2020.
  4. The Cyprus Review invites submissions for its spring 2020 edition. The deadline for article submissions is February 1, 2020.
  5. The Academy on Human Rights and Humanitarian Law at the American University Washington College of Law invite submissions for the 2020 Human Rights Essay Award on the topic “Rule of Law and Human Rights: Strengthening Democratic Institutions.” The deadline for submissions is February 1, 2020.

Elsewhere Online

  1. Majida Sanaan-Guharzi, Amending Iraq’s Constitution is Hard, But Not Impossible, Kurdistan 24
  2. Joshua C. Huder, Trump Has Received a Formal Invitation To Be Impeached, The New York Times
  3. Israa Saber, A Constitutional Moment in Sudan, Lawfare
  4. SIonaidh Douglas-Scott, Scottland, Brexit and Independence, Verfassungblog
  5. Andreas Eka, Article 50 TEU as Legal Basis for Future Relations?, Verfassungblog
  6. Adam Tucker, A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill, UK Constitutional Law Association
  7. Steven D. Schwinn, Can California Enter into a Cap-and-Trade Agreement with Quebec ? Constitutional Law Prof Blog
  8. David R. Cameron, After the EU extends the UK’s exit date, Johnson loses, then wins, vote for a new election, Yale MacMillan Center
  9. Sándor Lénárd, “We the Corporations” – conversation with Adam Winkler Professor of Law, Mandiner Precedens
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Published on November 4, 2019
Author:          Filed under: Developments
 

Announcement–Constitutional Democracy Listserv

–Mark Graber, The University of Maryland Francis King Carey School of Law

The Constitutional Democracy Listserv is now up and running. If you are interesting in joining, send me (mgraber [at] law.umaryland.edu) your name and email and I will get you registered. Below is a reminder of the listserv purposes and preliminary rules. 

  1. I hope this list will provide a forum for thinking about the state of constitutional democracy throughout the world.  
  2. As such, you should be encouraged to a) post your thoughts about the state of constitutional democracy throughout the world, b) provide information about the state of constitutional democracy (Kim Scheppele is doing terrific work on a number of listservs providing information about Brexit), c) provide information about publications of interest, your publications in particular and d) provide information on upcoming conferences (“would anyone like to join a panel on X at the next __ conference?” is a perfectly good post).
  3. This is a listserv for academics interested in questions of constitutional democracy.  As such, posts should use language appropriate for an academic seminar and not a protest movement in the streets.  People are likely to have strong feelings about various practices in the world of constitutional democracy and academic commentary.  Nevertheless, please remember that if you cannot convince by arguments that some proposal is foolish, calling the proponents fools or worse is not likely to be any more effective.
  4. Keep posts constructive.  “You are deliberately misunderstanding me” or “you only say that because you support the blue party” have little or no content.  Readers can determine for themselves whether one post misunderstands another post.
  5. One virtue of a seminar is that participants are free to try out ideas that, on reflection, may not be publication worthy.  I suspect many of us have had the experience of making a comment on a listserv or in a seminar that on reflection, perhaps inspired by others, you realized was mistaken.  For this reason, what gets said on this listserv stays on this listserv unless the listserv speaker gives permission for outside publication.  Essentially this is the Chatham House Rule
  6. No one should send critical private messages to listserv participants.  These messages are often correctly perceived as intimidating, particularly by scholars who may be in vulnerable positions.  If you think a post is foolish, that is what the delete key is for.  I gather ICON-S is developing a harassment policy.  That policy will be incorporated by the listserv when adopted.
  7. Everyone who is on the listserv agrees to abide by these rules and principles and is subject to removal for violations.
  8. I will put together a committee that will help refine these standards and determine whether violations have occurred.
  9. At the next ICON-S Annual Conference, we should discuss whatever listserv issues and governance problems emerge.
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Published on November 2, 2019
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Call for Authors–2019 Global Review of Constitutional Law

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

For three years now, I·CONnect has partnered with the Clough Center for the Study of Constitutional Democracy to publish an annual Global Review of Constitutional Law. The Global Review offers a detailed but relatively brief overview of constitutional developments and cases around the world over the past calendar year. Thanks to the generosity of the Clough Center, directed by Professor Vlad Perju, we are able to make these reports available or free to the entire world.

The inaugural 2016 edition, featuring 44 jurisdictions, is available here. Our 2017 edition grew to 61 jurisdictions, and is available here. The most recent 2018 edition features 65 jurisdictions and is available here.

Planning is now underway for the 2019 edition. We invite scholars and judges to write jurisdiction reports for the Global Review. Please contact Simon Drugda by email at simondrugda [at] gmail.com to express your interest in producing a report. Please include a weblink to your scholarly or professional profile. Reports for the 2019 edition will be due by February 1, 2020. Detailed instructions will be shared with authors invited to produce a report.

We give great thanks to our many authors for producing their informative and insightful reports over the past three years, and we look forward to continuing this important initiative for many more years to come.

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Published on October 31, 2019
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On the Protests and Riots in Chile: Why Chile Should Modify its Presidential System

Sergio Verdugo, Centro de Justicia Constitucional, Universidad de Desarrollo (Chile)[1]

There are many ways to approach the demands behind the protests in Chile, and I do not aim to replace or disprove those perspectives. Instead, this essay shows that part of the problem relates to the existence of an unresponsive government and that the explanation for that unresponsiveness can be partly understood by the political dynamics that resulted from a set of institutional arrangements passed by recent political reforms. I claim that the accumulative effect of those political reforms, even though valuable in many ways (e.g., eliminating authoritarian enclaves), have pushed towards a polarized party system that tends to produce legislative deadlock.

The good news is that there is a way to solve the problem. The protests have created the need for bipartisan agreements finding a way out of the crisis, and politicians are now discussing a new agenda focusing on social issues. That agenda should not only consider responding to key social demands, but also to make sure that political institutions will become more responsive in normal times. Modifying critical aspects of the presidential system might be helpful in that task.

First, I offer some brief remarks on the demands of the protests. Second, I explain how the government has been unable to respond to key aspects of those demands in the past. Third, I explain how the set of institutional reforms have promoted a gridlocked legislative process. Finally, I briefly comment on the way the State has responded to the protesters.

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Published on October 29, 2019
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What’s New in Public Law


Vicente F. Benítez R., JSD candidate at NYU School of Law 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 Constitutional Court of Germany ruled that the deployment of German troops in Syria is a manifestation of the right of collective self-defense.  
  2. The U.S. Supreme Court agreed to hear a challenge against the structure of the Consumer Financial Protection Bureau, as well as a petition by President Trump’s administration against a judicial decision that blocked the expedited deportation of immigrants.  
  3. The Supreme Court of Brazil is set to decide whether it is necessary to exhaust all available appeals before a defendant can be imprisoned. This decision might have an impact in the prominent ‘Lava Jato’ case, as well as in former President Lula da Silva’s case.   
  4. The U.S. Supreme Court vacated a lower court decision that ordered the redrawing of electoral districts in Michigan.
  5. The Constitutional Court of South Africa struck down a section of the Intimidation Act that criminalized any conduct that caused someone to fear for their own safety or the safety of their property or livelihood. The Court concluded that this provision infringed freedom of expression. 

In the News

  1. The High Court of the Hong Kong Special Administrative Region dismissed a claim challenging the constitutionality of the nonrecognition of same-sex marriage.
  2. The Court of Session in Scotland delayed a decision on whether PM Boris Johnson has complied with the law requiring him to seek a Brexit extension.
  3. The Parliament of the UK rejected PM Johnson’s timetable to discuss the legislation needed to implement the Brexit deal.
  4. In Thailand, the leader of the opposition Future Forward Party, Thanathorn Juangroongruangkit, apologized to PM Thaksin Shinawatra for his declaration before the Constitutional Court on the PM’s ‘conflicts of interest’. 
  5. The President of Zimbabwe, Emmerson Mnangagwa, rejected a proposal to suspend elections for seven years, proposal tabled by the Zimbabwe Heads of Christian Denominations.  
  6. Thousands of people have taken to the streets in Lebanon to protest against the political elites and the economic difficulties the country is facing.
  7. The President of Chile, Sebastián Piñera, declared a state of emergency and deployed troops onto the streets amidst demonstrations held against his government. 
  8. The President of the Government of Catalonia, Quim Torra, called for negotiations with the central government of Spain after more than five nights of civil unrest.
  9. The Government of Colombia requested an Advisory Opinion to the Inter-American Court of Human Rights on whether the prohibition of presidential re-election constitutes a human rights breach.   
  10. In Armenia, the ruling My Step Party seeks to remove the President of the Constitutional Court, Hrayr Tovmasyan, from his post.  
  11. The Green Party of Switzerland made significant gains in the Parliamentary elections held on October 20.
  12. The PM of Israel, Benjamin Netanyahu, informed President Reuven Rivlin that he was not able to form a new government.
  13. In Northern Ireland, the law prohibiting abortion was repealed, while same-sex marriage was legalized.   
  14. The Electoral Commission of Ghana set December 17, 2019, as the date to hold a referendum aimed at amending the Constitution to permit political parties to fund their candidates’ campaigns.
  15. The Secretary for Security of Hong Kong, John Lee, stated that the government will withdraw the bill that expanded Hong Kong’s extradition laws.
  16. The President of Ukraine, Volodymyr Zelensky, urged lawmakers to take a lie detector test in the wake of a corruption scandal that has shaken the country. 
  17. In the midst of allegations of fraud, the President of Bolivia, Evo Morales, claimed an outright victory in the first-round presidential election, thus discarding a run-off.
  18. In Canada, PM Justin Trudeau will remain in power as the leader of a minority government, given that the Liberal Party could not manage to secure an absolute majority in the House of Commons.
  19. The President of Russia, Vladimir Putin, met with his Turkish counterpart Recep Tayyip Erdogan to discuss a plan on how to control the territory previously held by Kurdish and American forces in Syria.
  20. The State Counselor of Myanmar, Daw Aung San Suu Kyi, declared that the ‘military are not overly enthusiastic’ about the amendments required to complete the transition to democracy.
  21. The PM of Vietnam, Nguyễn Xuân Phúc, announced before the National Assembly that the country will not make any concessions on its territorial independence and sovereignty with regard to East Sea.
  22. The Senate of Brazil approved a far-reaching pension reform that seeks to save the Treasury around USD 195 billion during the next decade.
  23. In Spain, the remains of dictator General Francisco Franco were exhumed from the Valley of the Fallen mausoleum, after the country’s Supreme Court upheld a government’s decision to do so.  

New Scholarship

  1. Andrew Novak, Transnational Human Rights Litigation: Challenging the Death Penalty and Criminalization of Homosexuality in the Commonwealth (2019) (analyzing the role of strategic human rights litigation in the dissemination and migration of transnational constitutional norms and providing an analysis of how transnational human rights advocates and their local partners have used international and foreign law to promote abolition of the death penalty and decriminalization of homosexuality)
  2. Yonique Campbell, Citizenship on the Margins. State Power, Security and Precariousness in 21st-Century Jamaica (2020) (critically exploring the impact of national security, violence and state power on citizenship rights and experiences in Latin America and the Caribbean, and arguing that dominant responses to security have wider implications for citizenship)
  3. Nicolas Carrillo-Santarelli & Carolina Olarte-Bácares, From Swords to Words: the Intersection of Geopolitics and Law, and the Subtle Expansion of International Law in the Consolidation of the Independence of the Latin American Republics, Journal of the History of International Law (2019) (examining several factors that indicate that pragmatism, motivated by political and economic reasons, was the defining element that persuaded different European powers to grant recognition to the nascent Latin American States in a historical era in which such recognition was essential for statehood)
  4. Lydia Brashear Tiede, Mixed Judicial Selection and Constitutional Review, Comparative Political Studies (2019) (after examining the vote choice on the Chilean and Colombian constitutional courts, the article suggests that judges’ decisions to strike down laws are explained more by their and other colleagues’ institutional selector than their political party associations)
  5. Sébastien Van Drooghenbroeck & Cecilia Rizcallah, The ECHR and the Essence of Fundamental Rights: Searching for Sugar in Hot Milk? German Law Journal (2019) (sketching out the different functions assigned to the concepts of the essence, substance, and core of rights in the ECtHR’s case law, and suggesting that these concepts are invoked for three different types of purposes: to fix ‘limits on the limits’, expand the Convention’s sphere of protection and review the intensity of States’ obligations)
  6. Jorge Ernesto Roa-Roa, Control de constitucionalidad deliberativo. El ciudadano ante la justicia constitucional, la acción pública de inconstitucionalidad y la legitimidad democrática del control judicial al legislador (Deliberative Judicial Review. The citizenry before the constitutional jurisdiction, the public action of unconstitutionality, and the democratic legitimacy of a judicial oversight on the legislature) (2019) (providing a critical analysis, from a deliberative perspective, of the Colombian public action to declare the unconstitutionality of laws, and arguing that the ample avenues granted to the citizenry to access the Constitutional Court enhance the democratic credentials of judicial review of legislation in Colombia)   
  7. Dina Lupin Townsend, Silencing, consultation and indigenous descriptions of the world, Journal of Human Rights and the Environment (2019) (arguing that the Inter-American Court and Commission of Human Rights have interpreted indigenous testimony about the environment as being claims about the cultural impacts of disputed activities or plans, and not as claims about the environmental impacts)
  8. Alex Schwartz, An Agent-Based Model of Judicial Power, Journal of Law (6 J. Legal Metrics) (2019) (exploring how new constitutional or supreme courts can act strategically to build their power while mitigating the risk of retaliation by the political branches, and suggesting that a court that avoids challenging the preferred policies of the political branches in high salience disputes will tend to exert more influence on constitutional law than a court that moves to establish its power early on in landmark cases)
  9. David Landau & Hanna Lerner (eds.), Comparative Constitution Making (2019) (providing an up-to-date overview of the rapidly expanding field of comparative constitution-making, presenting original, innovative research on central issues related to the process and context of constitution-making, and identifying distinctive elements or models of regional constitutionalism)
  10. Adrienne Stone, Proportionality and Its Alternatives, U of Melbourne Legal Studies Research Paper No. 848 (Forthcoming – 2019) (considering two possible understandings of proportionality in Australian Constitutional Law, and claiming that a third approach –namely Justice Gageler’s ‘calibrated scrutiny’– has the potential to provide a greater measure of clarity and predictability without sacrificing all of the benefits of proportionality)
  11. Shane Chalmers, The Mythology of International Rule-of-Law Promotion, Law & Social Inquiry (2019) (showing how the mythology of modern law endures in the field of rule-of-law development and how it, in its racialized imperial form, is integral to the work of international rule-of-law promotion)
  12. Maria C. Escobar-Lemmon, Valerie Hoekstra, Alice J. Kang & Miki Caul Kittilson, Appointing women to high courts, in Susan M. Sterett & Lee D. Walker (eds.), Research Handbook on Law and Courts (2019) (examining the burgeoning literature on women’s appointments in the judicial branch, and considering studies that focus on the role of institutions in advancing or hindering women’s judicial representation as well as studies that have emphasized supply-side explanations, that is, explanations that highlight the importance of the supply of qualified women)

Calls for Papers and Announcements

  1. The Government and Laws Committee, Politics and Public Administration Association SSS HKUSU –with the support from the BSocSc (Govt&Laws) & LLB Programme at The University of Hong Kong– is pleased to announce the publication of the Inaugural Volume of The Hong Kong Journal of Law and Public Affairs. This first volume focuses on “Confucian Democracy and Constitutionalism.”
  2. The Legal Philosophy Workshop calls for papers for the upcoming 7th annual Legal Philosophy Workshop 2020 to be held at the University of Southern California in Los Angeles on June 25-26, 2020. The deadline for submissions is January 6, 2020.  
  3. The British Institute of International and Comparative Law invites interested scholars to apply for a Research Fellow position in Judicial Independence and Constitutional Transitions. Applications should be submitted by November 3, 2019.
  4. The Forum for Law and Social Science at the Faculty of Law of the University of Oslo will host the 3rd Conference on Empirical Legal Studies in Europe (CELSE) on June 11-12, 2020, and welcomes submissions of unpublished papers on the areas of interest of the Conference. Proposals must be sent by February 15, 2020.   
  5. PluriCourts invites submissions for its forthcoming workshop on “The Political and Legal Theory of International Courts and Tribunals 2020: Independence, accountability, and domination in International Courts.” The deadline for submission of proposals is December 1, 2019.
  6. The department of Law at the London School of Economics (LSE) seeks an Assistant Professor in Law (Technology Law and Regulation). Applications should be submitted no later than November 18, 2019.
  7. Lancaster University invites submissions for its forthcoming University Law Conference on the theme “Law and Justice.” Proposals are due by December 13, 2019.     

Elsewhere Online

  1. Gautam Bhatia, The 16th September Order and the Supreme Court of Convenience (or why separation of powers is like love), Indian Constitutional Law and Philosophy
  2. Victoria Clement, Passing the baton in Turkmenistan, Atlantic Council
  3. Katrina Forrester, The Future of Political Philosophy, Boston Review
  4. Joelle Grogan, Fools Rush Out. On the Withdrawal Agreement and EU (WA) Bill, Verfassungsblog
  5. Lénárd Sándor interviewed Professor Robert P. George who spoke about natural law and natural rights, “A false claim of a human right is a claim that fails the test of natural law” – conversation with Robert P. George, Precedens.Mandiner
  6. Swee Leng Harris, Law-making in the UK post-exit, who gets to call the shots? The UK in a Changing Europe
  7. Ailsa Henderson, No passion please, we’re Canadian: the 2019 federal election and a divided electorate, Centre on Constitutional Change
  8. Louise Cockram, From candidate to elected member: will new MPs face a trial by fire after the 2019 Canadian federal election? The Constitution Unit
  9. Marcin Matczak, The Polish Senate under Opposition Control, Verfassungsblog
  10. Nicolás Carrillo-Santarelli, The Strategic Use of Advisory Opinion Requests in Colombian-Venezuela Bilateral Relations, OpinioJuris
  11. Ken Lohatepanont, Building broad support for constitutional reform, Bangkok Post
  12. Teresa Violante, Between Legislative Defiance and Legal Security. How Portugal’s Constitutional Court Refused to Re-Open the Debate on Surrogacy, Verfassungsblog
  13. Santanu Paul interviewed Professor Tom Ginsburg who addressed several questions on the survival of constitutional democracies, Interview with Professor Tom Ginsburg, Leo Spitz Professor of International Law and Political Science in the University of Chicago, The Economic Times Blogs  
  14. Anna Heslop & Soledad Gallego, Court highlights strict rules in milestone ruling for wildlife protection C-674/17, European Law Blog
  15. Maria Ela L. Atienza, From ‘Big Bang’ to Incremental Changes to the 1987 Philippine Constitution, ConstitutionNet
  16. Adil Ahmad Haque, Turkey, Aggression, and the Right to Life Under the ECHR, EJIL: Talk!
  17. Erika Arban & Antonia Baraggia, Guest Editors’ Introduction: IACL’s New Research Group on New Frontiers of Federalism, IACL-AIDC Blog
  18. Thomas Gift, Will Democrats win the politics of impeachment? It depends on their strategy, LSE USCentre
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Published on October 28, 2019
Author:          Filed under: Developments
 

Special Discount–New Book–“Founding Moments in Constitutionalism”


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

I-CONnect is pleased to share a special 20% discount code for our readers interested in a new book entitled Founding Moments in Constitutionalism (Hart 2019), edited by Menaka Guruswamy, Nishchal Basnyat, and me.

To order this book at the discount rate, enter code CV7 at checkout here.

Here is the book’s description:

Founding moments are landmark events that break ties with the ancien régime and lay the foundation for the establishment of a new constitutional order. They are often radically disruptive episodes in the life of a state. They reshape national law, reset political relationships, establish future power structures, and influence happenings in neighbouring countries.

This edited collection brings together leading and emerging scholars to theorise the phenomenon of a founding moment. What is a founding moment? When does the ‘founding’ process begin and when does it end? Is a founding moment possible without yielding a new constitution? Can a founding moment lead to a partial or incomplete transformation? And should the state be guided by the intentions of those who orchestrated these momentous breaks from the past? Drawing from constitutions around the world, the authors ask these and other fundamental questions about making and remaking constitutions.

And here are the contents of the volume:

Introduction: Mapping the Founding
Richard Albert and Menaka Guruswamy

1. Between Fact and Norm: Narrative and the Constitutionalisation of Founding Moments
Ming-Sung Kuo

2. The Role of Courts in Advancing Constitutional Moments: Constitutionalising the Constitution in Singapore and Hong Kong
Swati Jhaveri

3. Foundation and Revolution: Hannah Arendt and the Problem of Legitimacy and Stability in Constitutional Consolidation
Mel A Topf

4. I am Not Your (Founding) Father
Mikolaj Barczentewicz

5. ‘And Then They Begin to Look after the History of Their Founders’: (Re)configurations of the Founding in the Early Republic
Simon Gilhooley

6. Under the Shadow of the Constitutional Revolution? Revisiting Israel’s Founding Moments
Yair Sagy

7. Path-Dependency in Soviet and Russian Constitution-Making
Eugene D Mazo

8. ‘Founding Moments’ in Latin America? The Brazilian and Chilean Constitutional Histories and the Rise of the Forgotten People
Juliano Zaiden Benvindo

9. We the Taiwanese People: A Constitution with Two Antagonistic Constitutional Identities
Chien-Chih Lin

10. What’s in a Founding? Founding Moments and Pakistan’s ‘Permanent Constitution’ of 1973
Maryam S Khan

11. A Founding Moment in Iraq: A Gender Perspective
Noga Efrati

Conclusion: Rethinking Founding Moments
Nishchal Basnyat

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Published on October 26, 2019
Author:          Filed under: Developments
 

The Party Fragmentation Paradox in Brazil: A Shield Against Authoritarianism?

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

Brazil features possibly the most fragmented party system in the world. At this current legislative term, there are 25 parties with representation in the Lower House, and 16 in the Senate. The level of fragmentation is so steep that the biggest party in the Lower House – the Worker’s Party (PT) – and the biggest party in the Senate – the Brazilian Democratic Movement (MDB) – amount to merely 10.5% and 16% of each House, respectively. In order for a government to reach the needed support in Congress to advance its agenda, presidents must build stable and disciplined political coalitions, a system that has long been called “coalitional presidentialism.”[1] If they are not able to do so, the chances of a political crisis are real – and the two presidential impeachments since the transition to democracy in 1985 (Collor de Mello, in 1992,[2] and Dilma Rousseff, in 2016) are evidence of what may happen when things go terribly wrong. Interestingly enough, such a high level of party fragmentation, which is a structural dysfunctionality of the Brazilian political system, may paradoxically serve as a shield against radical and authoritarian intents by the executive power. Brazil may be experiencing such a paradox: a dysfunctionality of its political system may well function to protect democracy against a president, Jair Bolsonaro, whose authoritarian mindset is undisputed.

Such a phenomenon seems unexpected and, comparatively, underexplored in the constitutional literature. Indeed, most analyses of the current phenomenon of democratic decay in the world focus on a series of markers to describe and diagnose the level of degradation of democratic credentials, such as rising polarization, court-packings, strategic use of referenda, disruption of the political system (normally associated with an anti-systemic and antipluralist­ rhetoric), attacks on civil liberties and on the media, rejection of the democratic rules of the game,[3] “colonization” of the state at all levels,[4] populism, etc. Constitutional lawyers, in this scenario, tend to deposit their faith in constitutional courts as the last resource to safeguard democracy, and it is no wonder that also the constitutional literature tends to focus on courts. Parliaments, on the other hand, tend to be much less explored, not only because constitutional law has a natural bias towards courts, but also because, as observed in numerous cases of advanced democratic decay such as in Hungary[5]and Turkey,[6] parliaments were unable to function as an effective check on the executive power – quite the opposite, in fact.

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Published on October 24, 2019
Author:          Filed under: Developments
 

Book Review: Paul Daly on Oran Doyle’s “The Constitution of Ireland: A Contextual Analysis”


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Paul Daly reviews Oran Doyle’s book on The Constitution of Ireland: A Contextual Analysis (Hart Publishing, Oxford, 2018)


Paul Daly, University Research Chair in Administrative Law & Governance, University of Ottawa

Oran Doyle’s contribution to Hart’s Constitutional Systems of the World series should be read by anyone with an interest in Irish constitutional law and also by comparative constitutional lawyers.

From a domestic perspective, Doyle paints a vivid portrait of the Irish Constitution, a text which came into force in 1937 and has survived – intact, for the most part – to the present day, comfortably outliving most attempts to codify in a single document the basic rules, principles and standards relating to the structure of the state and its relationship to the people within it. Doyle views the Irish Constitution as a “master-text document” which “contains most of the constitutional laws”, but argues that a focus on text would be erroneous, for “it is supplemented and informed by other constitutional laws and practices” (19). Doyle’s “central argument” is that notwithstanding the tripartite separation of powers between executive, legislative and judicial branches envisaged by Article 6, “the constitutional structure is built on a bipartite separation of power between the Government and the courts” (19), albeit that the requirement to secure popular support in a referendum for formal constitutional change serves as a “significant check” on the power of the Government (20).

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Published on October 23, 2019
Author:          Filed under: Reviews
 

Now Available: The 2018 Global Review of Constitutional Law


Richard Albert, The University of Texas at Austin, and David Landau, Florida State University

I·CONnect is pleased to partner with the Clough Center for the Study of Constitutional Democracy to bring you the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law. The report may be downloaded here for free.

This 2018 edition of the Global Review of Constitutional Law includes reports from 65 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 61 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 has previously been limited mainly to local networks. 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-editors Pietro Faraguna and Simon Drugda for their instrumental role in making this Global Review a success.

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.

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

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

The 2018 Global Review of Constitutional Law is available for free here.

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Published on October 22, 2019
Author:          Filed under: Developments