I·CONnect

—Carlos Bernal, Professor, University of Dayton School of Law; Diego González, Deputy Justice, Constitutional Court; Maria Fernanda Barraza, LL.M. Candidate, Cornell University; Sebastián Rubiano-Groot, Law Clerk, Constitutional Court

I. Introduction

2020 was one of the most eventful years in the recent history of Colombia. During the first trimester, civil society, public authorities, and private actors, faced critical challenges related to the unprecedented social demonstrations that spread out across the country. Though the first mobilizations took place on November 2019, the so-called “National Strike” lasted unexpectedly until March 2020 and shaped a national movement, which since then has asked for a “national dialogue”. In March, the Covid-19 virus reached Colombia and generated catastrophic social and economic disruptions. It posed unparalleled challenges to national and local public authorities and gave rise to the President´s declaration of a State of Exception. What started as a health emergency rapidly grew into an economic and social crisis, which brought about decisive legal decisions that raised important constitutional questions. In this context, all branches of government took part in the decisions about the appointments of high officials and defined the current composition of some of the most important public institutions.

In this report, we discuss how these challenges shaped 2020 in Colombia. First, this report focuses on how social protests, the Covid-19 emergency, and the appointments of high officials led to important constitutional debates and political concerns regarding the separation of power in Colombia. In particular, the report portrays the President´s exercise of extraordinary powers twice during 2020 to control and to prevent the spread of the virus as well as to mitigate its impacts. Secondly, this report analyses the Court´s main rulings on the most emblematic Covid-19 Legislative Decrees. Finally, this report addresses the Court´s cases relating to women´s reproductive rights and gender equality, animal rights, freedom of the press and information in contexts of closed criminal proceedings, and the public surveillance implications on the right to privacy.

—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In my first column, back in January 2021, I wrote about Ethiopia’s constitutional crisis. Within a year, that constitutional crisis has grown into a state crisis. Now, the territorial integrity and political unity of Ethiopia are in question, and its people are under devastating conditions and pitted against each other by their elites and great power politics. Since the start of the war in November 2020, Ethiopia has been on the agenda of the United Nations Security Council (UNSC) almost every month. Each time, the members of the UNSC express their commitment to the territorial integrity and political unity of Ethiopia as they push for the peaceful resolution of the ongoing war between the Tigray People’s Liberation Front (TPLF)- i.e., the ruling party in Tigray regional state- and the federal government. They also indicate that the conflict should be solved in line with Ethiopia’s Constitution. But unlike the members of the UNSC, the Ethiopian Constitution is not committed to the territorial integrity and political unity of the country. Considering the political developments since the start of the war, solving the current crisis through constitutional means could end Ethiopia as we know it, and this is partly why, I believe, the Constitution is not helpful to bring durable peace not only in Ethiopia but also in the entire Horn of African region. Here is why.  

Ethiopia is a federation, but a different kind where more than 80 ethnolinguistic groups can secede anytime without even providing any justification as a matter of constitutional right. Thus, the Ethiopian federation is a “federation of convenience”, and this differentiates Ethiopian federalism from the federal systems of many democratic states. Whether a federal system is adopted out of considerations of security, economic prosperity, freedom, and democracy – as in many Western federal democracies such as the United States– or it is adopted as an accommodation mechanism for ethnic, religious, and linguistic diversity – as in many post-Second World War federal systems such as Nigeria or India, a democratic federal system formally commits to the continuity and indivisibility of the federal union.[1] Democratic federalism, then, is like a marriage vow by which constituent units of a federation take each other ‘to have and to hold from this day forward … until death do us part.’ Here the claim is not that the promise of indivisibility alone would bring a perpetual union.[2] Rather, as a matter of political theory and practice, democratic federations make a solemn commitment to their continuity. Whether such federations would continue to exist is contingent upon several factors both within and beyond them. But Ethiopian federalism has no such solemn commitment.

–Wilson Seraine da Silva Neto, Master Student at the University of Coimbra – Portugal; Postgraduate in Constitutional Law at Brazilian Academy of Constitutional 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

1. The United States Supreme Court has heard arguments on the second amendment case. The justices’ questions suggested that New York’s guns control law is likely to be stricken down.
2. Brazil’s Supreme Court ruled in a majority to maintain Justice Rosa Weber’s decision to veto payments (slush fund) that government officials use with the support of the Bolsonaro administration to attract deputies and senators in key votes.
3. The United States Supreme Court has heard arguments in a case involving three Muslim men from California who accused the FBI of illegally conducting surveillance on them following the September 11, 2001 attacks.
4. The Supreme Court of the United Kingdom blocks U.K. class-action lawsuit against Google on behalf of more than 4m Apple iPhone users over Google’s alleged tracking of personal data.
5. The United States Supreme Court mulled a bid from a Texas death row inmate who is challenging the state’s refusal to allow his pastor to lay hands on him and audibly pray while he is executed.
6. The Supreme Court of India has agreed to hear a plea by journalist Shyam Meera Singh and two others that seeks to quash a Tripura Police FIR under controversial anti-terror law UAPA for social media posts – including Mr Singh’s “Tripura is burning” tweet – made during violence in the state last month.
7. The United States Supreme Court heard arguments on a potential landmark case looking into whether it’s constitutional to deny federal benefits to ageing and disabled U.S. citizens living in Puerto Rico, even though they can access them if they live on the mainland.
8. The Constitutional Court of the Kingdom of Thailand ruled that three activists aimed to overthrow the state and the monarchy in their speeches and ordered them and other parties to end all moves against the highest institution.

In the News

1. Eric Leroy Adams, a former New York City police captain whose attention-grabbing persona and keen focus on racial justice fueled a decades-long career in public life, was elected as the 110th mayor of New York and the second Black mayor in the city’s history.
2. Pablo Escobar’s “cocaine hippos” are considered people, U.S. judge ruled.
3. Colombia’s Constitutional Court rejected the request by former President Alvaro Uribe to revoke his indictment on fraud and bribery charges.
4. The far-right German party AfD takes the Parliament to court over representation in the top-level Presidium of the Bundestag.
5. The Orbán government has lodged a complaint with the Constitutional Court of Hungry against the order of the Kúria refusing to certify a referendum on child protection from the cabinet.
6. The National Assembly appointed Rok Svetlič a judge on the Constitutional Court of Slovenia for a nine-year term in a secret ballot.
7. A Bogota court barred Colombia’s President Ivan Duque from ratifying a controversial constitutional amendment that suspended electoral legislation meant to prevent the use of public funds in election campaigns.

New Scholarship

1. Ryan Goss, What Do Australians Talk About When They Talk About ‘Parliamentary Sovereignty’? (2021) (arguing that references to parliamentary sovereignty and parliamentary supremacy in the Australian context either cannot stand, need not stand, or do not helpfully stand, as efforts to explain Australian public law).
2. Julia M. Puaschunder. Environmental, Social and Corporate Governance (ESG) Diplomacy: The time has come for a Corporate and Financial Social Justice Great Reset (2021) (examining three trends that have become prevalent in the wake of the coronavirus pandemic: social inequality, economy and clime change).
3. Maartje De Visser, Constitutionalising Cities: Realising Government Agendas or Sites for Denizen Engagement?, in Unlocking the Constitutional Handcuffs on Canadian Cities (forthcoming 2022) (outlining two ideal types for city-empowering constitutional amendments.)
4. Berihun Adugna Gebeye, A Theory of African Constitutionalism (2021) (theorising the development and transformation of African constitutionalism from pre-colonial times to the present with the attendant constitutional designs and practices.)
5. Rosalind Dixon and David Landau, Abusive Constitutional Borrowing (2021) (identifying and examining the phenomenon of abusive constitutional borrowing by judges, lawyers and political actors around the world.)
6. Silvia Suteu, Eternity Clauses in Democratic Constitutionalism (exploring the role of eternity clauses in constitution-making, constitutional adjudication, and constitutional reform.)

Call for Papers and Announcements

1. Institute for Legal Research at University of Coimbra and House-Refuge Project invite submissions to the IV Debate on “Forests and Legislation: The New Integrated Management System for Rural Fire,” which will take place on December 17^th.
2. Verfassungsblog and Völkerrechtsblog call for contributions for a blog symposium and journal special issue on “Comparative Climate Litigation in North-South Perspective. The deadline is November 15^th.
3. Amity Law Review (ALR) invites submissions for its 17th Volume, which will be published in a digital version. The last date of submission is November 30^th.
4. Lucknow Law Review invites submissions for its Volume 1, Issue 3. They publish research articles, long and short, case comments, and book reviews. The deadline for submissions is December 15^th.
5. The Criminal and Constitutional Law Journal invites submissions for its Volume 1 Issue in the form of articles, case comments, or book reviews. The deadline is December 31st.
6. Jean Monnet Chair in Law and Transatlantic Relations, Institute for the Study of European Law (ISEL) and International Law and Global Affairs (ILAG) invite to the lecture “Transatlantic Perspectives on Populism: ‘Bugaric & Tushnet’s ‘Power to the People’” on November 24^th.

Elsewhere Online

1. Interview with Professor Kasim Trnka, The OHR and the BiH Constitutional Court are the Safeguards of the State, Sarajevo Times.
2. Who are the most cited Brazilians in Law on Academic Google, Conjur.
3. Paulo Iotti, STF acerta ao reconhecer a injúria racial como crime de racismo, Migalhas.
4. Imelda B Deinla, Women Judges and the Rise and Fall of Philippine Democracy, IACL-AIDC Blog.
5. Anna Dziedzic, Women Judges, Local Judges, Foreign Judges: Methods of Collecting and Analysing Data on Gender and Pacific Judiciaries, IACL-AIDC Blog.