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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

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

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

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

Developments in Constitutional Courts

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

In the News

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

New Scholarship

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

Call for Papers and Announcements

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

Elsewhere Online

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

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

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

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

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

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

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

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

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

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Published on March 14, 2018
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The Rise and Fall of a Constitutional Moment: Lessons from the Chilean Experiment and the Failure of Bachelet’s Project

Sergio Verdugo, Professor of Constitutional Law, Universidad del Desarrollo / JSD candidate, New York University; and Jorge Contesse, Assistant Professor of Law, Rutgers Law School

Five days before stepping down as president of Chile, Michelle Bachelet sent a bill to the Chilean Congress proposing a new constitutional text aimed at replacing the current Constitution.  The adoption of a new constitution was one of Bachelet’s key promises when she gained the presidency (for the second non-consecutive term) with a 62 percent vote, in 2013.  Despite the high popular support for a constitutional replacement in Chile, we argue that Bachelet’s recent constitution-making process failed.  Her innovative and complex constituent process, which sought to channel the demand for a new constitution, ended up demobilizing it and excluding political parties.  Uncoupled with an active role for political parties, a “bottom-up” rhetoric for public participation is not sufficient to successfully bring about serious constitutional change.  Although we claim that the demand for a new Constitution is not irrelevant in Chile, it has been harmed and weakened.

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Published on March 13, 2018
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What’s New in Public Law

Chiara Graziani, PhD Student in Comparative Constitutional Law, University of Genoa (Italy)

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

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

Developments in Constitutional Courts

  1. The Irish Supreme Court ruled that the rights of the unborn child do not extend beyond the right to life.
  2. The Romanian Constitutional Court struck down legislation allowing lawmakers and other public officials to own business.
  3. The European Court of Justice ruled that the arbitration clause in the Agreement between the Netherlands and Slovakia on the protection of investments does not ensure that disputes will be decided by a court within the judicial system of the EU, therefore having an adverse effect on the autonomy of EU law and being incompatible with it.
  4. The US Supreme Court held that the US government is vested with the authority to file actions against New Mexico to enforce water rights deriving from division of the Rio Grande River.
  5. The US Supreme Court granted certiorari on the interpretation of the Sex Offender Notification and Registration Act
  6. The Brazilian Supreme Court approved investigation of President Temer in illicit funds.
  7. The French Constitutional Council ruled that all victims of the Algerian war have the right to receive a pension, even if they are not French citizens.

In the News

  1. Mississippi passed a bill prohibiting abortion after 15 weeks.
  2. A UK court found two leaders of fair-right extremist groups guilty of anti-Muslim hate crimes.
  3. France plans a new law raising the age of sexual consent to 15 years.
  4. Former President of Argentina will face trial over a 1994 bombing of Jewish community center.
  5. Germany formed a “grand coalition” government, led by Angela Merkel at her fourth term.
  6. A Polish law criminalizing Holocaust speech entered into force.
  7. The UK Data Protection Bill passed second reading in the House of Commons and moved to Committee stage.
  8. The Oregon Senate passed a net neutrality bill.
  9. The Ethiopian Parliament ratified a state of emergency after the resignation of the Prime Minister.
  10. The EU Home Affairs Sub-Committee of the UK House of Lords launched an inquiry on the EU-UK proposed security treaty, framing cooperation in law enforcement and criminal justice after Brexit.

New Scholarship

  1. Rehan Abeyratne, Ordinary Wrongs as Constitutional Rights: The Public Law Model of Torts in South Asia (2018) (examining how South Asian courts converted torts claims into constitutional rights claims, under the guise of public interest litigation)
  2. Francesca Bignami and David Zaring (eds.), Comparative Law and Regulation (2018) (analyzing the operation of the global regulatory process)
  3. Maureen Duffy (2018), Detention of Terrorism Suspects. Political Discourse and Fragmented Practices (focusing on how political discourse has been used to frame certain antiterrorism policies that are outside of traditional criminal and wartime models)
  4. Lord Dyson, Continuity and Change (2018) (discussing some key themes of the common law judicial system)
  5. Veronica Fikfak, Hayley J. Hooper (eds.), Parliament’s Secret War (2018) (inquiring the UK Parliament’s role in the war prerogative and evaluating UK’s decisions to engage in conflicts in terms of accountability, transparency and participation)
  6. Emanuela Fronza (2018), Memory and Punishment. Historical Denialism, Free Speech and the Limits of Criminal Law (examining the criminalization of denials of genocide and of other mass atrocities and investigating the relationship between criminal law, free speech and historical memory)
  7. Alexander Horne and Gavin Drewry (2018), Parliament and the Law (considering recent changes in UK constitutional arrangements and their impact on the Parliament as an institution)
  8. William F. McDonald (2018), The Criminal Victimization of Immigrants (analyzing the exploitation of immigrants in various contexts and the legal responses to it)
  9. Julian Scholtes, The Complacency of Legality: Constitutionalist Vulnerabilities to Populist Constituent Power (2018) (revisiting the Schmitt-Kelsen debate on constituent power with a view to constitutional populism, linking the theoretical debate to concrete legal development)
  10. Mark P. Strasser (2018), Free Exercise of Religion and the United States Constitution (discussing the case law of the US Supreme Court on the free exercise of religion)
  11. Mark Tushnet (2018), The Inadequacy of Judicial Enforcement of Constitutional Rights Provisions to Rectify Economic Inequality, and the Inevitability of the Attempt, in Shruti Bedi and Lokendra Malik (eds.), Judicial Review: Process, Power and Problems (discussing the judicial enforcement of social welfare and equality rights)

 Call for Papers and Announcements

  1. The T.M.C. Asser Instituut (The Hague) invites applications for a position of a full-time Senior Researcher on ‘Advancing Public Interests in International and European Law’. The deadline for applications is March 23, 2018.
  2. The Research Group on Constitutional Responses to Terrorism of the International Association of Constitutional Law invites submissions of abstracts for the dedicated workshop within the Xth World Congress of Constitutional Law, to be held in Seoul on 18-22 June 2018. The deadline for submission is March 30, 2018.
  3. The University of Salzburg (Austria) invites submissions of abstracts from doctoral students to participate to the Summer School on “Dimensions of Human Rights”, to be held in Salzburg on 23-27 July 2018. The deadline for submission is March 30, 2018.
  4. The Association “Diritto Pubblico Comparato ed Europeo” welcomes submissions of abstracts for the conference “Parlamenti e parlamentarismo nel diritto comparato”, to be held in Rome on October 25-26, 2018. The deadline for abstracts is April 15, 2018.
  5. The Chair for Public and Comparative Law at Humboldt University, Berlin, in collaboration with the Journal VRÜ/Law and Politics in Africa, Asia and Latin America, welcomes applications for a short term research scholarship offered to emerging legal scholars from India. The deadline for applications is April 15, 2018.
  6. The University of Trento (Italy) invites applications for the Summer School in “Comparative Constitutional Adjudication” on the theme “Islam in Constitutional Adjudication in Europe”, to be held in Dimaro, Val di Sole (Italy) on July 30-August 3, 2018. Deadline for applications is April 26, 2018.
  7. The University of Bologna welcomes registrations for the Summer School “Metodologia della Comparazione. Modelli di giustizia costituzionale, transnazionale e politica”, to be held on July 2-6, 2018 in Bologna. Deadline for registration is May 1, 2018.
  8. The University of Trento organizes the conference “Constitutional Protection of Minorities. Comparing Concepts, Models and Experiences in Asia and Europe”, to be held on May 4-5, 2018
  9. The Irish Center for Human Rights has opened registration for the Summer School in “International Criminal Courts”, to be held in Galway (NUI) on 18-22 June 2018. Registration closes on June 1, 2018. Scholarships are available, as well, with closing date for applications March 15, 2018.

Elsewhere Online

  1. Paul Craig, European Union (Withdrawal) Bill: Legal Status and Effect of Retained Law, UK Constitutional Law Association
  2. David R. Cameron, Italy votes and anxious Europe shudders, Yale Macmillan Center
  3. Adeel Hussain, Pakistan’s Supreme Court to Purify Parliamentarians, Verfassungsblog
  4. Andreas Zimmermann, Times Are Changing – and What About the International Rule of Law Then?, EJIL: Talk!
  5. Gareth Davies, Lounes, Naturalisation and Brexit, European Law Blog
  6. Steve Peers, The Return of the Border? Analysis of the Irish border provisions in the Brexit withdrawal agreement, EU Law Analysis
  7. Sarah Lambrecht, The Draft Copenhagen Declaration – Comment Series VI, ECHR Blog
  8. Robert Chesney and Steve Vladeck, The National Security Law Podcast: Judge Pohl Says: ‘Hold My Beer’, Lawfare
  9. Arianna Vedaschi and Chiara Graziani, PNR Agreements between Fundamental Rights and National Security: Opinion 1/15, European Law Blog
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Published on March 12, 2018
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2018 ICON·S Annual Conference–Registration Open for Panelists and Other Attendees

Richard Albert, The University of Texas at Austin

Registration is now open for the 2018 Conference of the International Society of Public Law (ICON·S) on “Identity, Security, Democracy: Challenges for Public Law,” to be held at The University of Hong Kong on June 25–27, 2018.

The preliminary program is viewable here. Non-panelists are invited to attend, but registration is still required. Registration instructions–for both panelists and other attendees–are available here.

We look forward to welcoming the global community of public law scholars to Hong Kong for what promises to be another successful ICON·S conference.

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Published on March 9, 2018
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Book Review: Naoyuki Okano on Jean-Bernard Auby’s “Globalisation, Law and the State”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Naoyuki Okano reviews Jean-Bernard Auby’s “Globalisation, Law and the State” (Hart 2017).]


Naoyuki Okano, Nagoya University, Graduate School of Law

With the deepening of globalization, especially after the 1980s, legal scholars have gradually become aware of the fundamental challenges that globalization poses on laws and legal studies. Still, as a review of globalization debates in different fields of social science by a legal scholar confirms,[1] laws and legal studies are generally lagging behind other fields of social sciences, such as economics or sociology, in analyzing mechanisms of globalization. Meanwhile, as Professor Gordon Anthony points out in his Foreword to the book, a clear understanding on the mechanism and nature of globalization is acutely needed especially for EU (and UK) public lawyers, with the aftermath of the Brexit vote still unfolding. It is against this background that Professor Jean-Bernard Auby’s illuminating book, Globalisation, Law and the State, originally published in French in 2010, is translated and published for English readers. The book makes a significant contribution by showing the fundamental challenges globalization poses for legal scholars, especially from the viewpoint of public law.

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Published on March 7, 2018
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What is New in Public Law?

–Mauricio Guim, S.J.D. Candidate University of Virginia 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 Supreme Court of India – after eleven years of litigation – ruled that synchronized trades in the futures and options market constitute an unfair trade practice.
  2. The Inter-American Court on Human Rights ruled that the right to a healthy environment is a right that can be directly invoked and protected through different international human rights instruments.
  3. The Supreme Court of Canada ruled that all employers should ensure all reasonable steps to accommodate disabled and injured workers to the point of undue hardship. The Court expanded the scope of employer’s obligation towards disabled and injured people and established an additional forum in which workers may claim human rights protection against work-related injuries.
  4. The Constitutional Court of South Africa ruled that South Africa has extra-territorial jurisdiction for crimes of terrorism committed outside South Africa, and that his jurisdiction is not limited to just prosecutions for financing terrorism.
  5. The Supreme Court of the United States declined to hear the Trump’s administration appeal of two federal judgments that ordered to maintain major pieces of DACA – Deferred Action for Childhood Arrivals – while constitutional challenges move forward.
  6. The highest administrative court of Germany ruled that vehicles can be banned from some city streets as part of efforts to improve air quality in urban areas, a decision that could have far-reaching consequences for the country’s automakers and the diesel technology they promoted for decades.
  7. The Constitutional Court of South Africa ruled in favor of three employees who left their jobs as a result of alleged racial discrimination which manifested itself in physical‚ verbal and mental abuse.
  8. The Supreme Court of India ruled that two-wheeler manufacturers will have to provide safety measures for pillion riders like saree guard and hand grip.
  9. The Constitutional Court of Germany ruled that the Minister of Education and Research Johanna Wanka violated the Constitution by using an official statement to criticize the far-right Alternative for Germany.
  10. The United States Supreme Court ruled that immigrants held in long-term detention do not have a right to periodic hearing to argue for their release, overturning a previous precedent that said that detained immigrants awaiting deportation must have a bond hearing every six months.
  11. The Supreme Court of Maldives annulled its own order to free a group of imprisoned opposition leaders after two of the Court’s justices were arrested amid a political crisis in the Indian Ocean nation.
  12. The Indian Supreme Court ruled that the state of Karnataka can withdraw up to 284.75 thousand million cubic feet of water from the river each month for the next 15 years, potentially solving a contentious issue – the sharing of water from the Cauvery River – since 1890s.
  13. The Supreme Court of Brazil upheld major changes to laws that protect the Amazon and other biomes, reducing penalties for past illegal deforestation.
  14. The Supreme Court of Israel ordered Bank not to block cryptocurrencies activities setting a potential global precedent.

In the News

  1. The Central Committee of the Chinese’s Communist Party announced a proposal to repeal the constitutional provisions that prescribe that the president and the vice-president “shall serve no more than two consecutive terms”, clearing the way for President Xi Jinping to stay in power indefinitely.
  2. The Competition and Consumer Commission of Australia initiated an investigation – the first of its kind the world – of Google and Facebook’s use of personal data, their impact on the media’s traditional business model, and the potential effect of that market shift on the ongoing creation of news and journalistic content in Australia.
  3. The Ministerial Committee for Legislation of Israel’s Knesset gave a “green light” to a bill that will strip the Supreme Court of its jurisdiction to hear land disputes in the West Bank.
  4. The Judicial Committee of Israel appointed two new judges to the Supreme Court: Alex Stein, Professor of Law at Brooklyn Law School in New York, and Ofer Grosskopf, current judge of the Tel Aviv District Court.
  5. The Minister of Justice of Poland, Zbigniew Ziobro, announced that the Government would not enforce the new Holocaust Law until the Constitutional Court makes a decision the constitutionality of the legislation.
  6. The Citizens Commission of Anti-Corruption of Mexico denounced that the Government is blocking its investigation by refusing to cooperate in some of the biggest corruption cases facing the nation.
  7. Judge Ronit Poznansky-Katz has been accused of coordinating judicial rulings with Israeli Securities Investigator Eran Shacham-Shavit in corruption Case 4000 against Prime Minister Nentanyahu’s family.
  8. The European Union finance head, Valdis Dombrovskis, warned that it would regulate cryptocurrencies if the risks exposed by the meteoric use of bitcoin and their ilk are not promptly addressed.
  9. In an unprecedented step, King Salman bin Abdulaziz of Saudi Arabia announced the appointment of Saudi woman, Tamadar Bint Yousef al-Ramah as the deputy minister of labour and social development.
  10. The state of Somaliland is expected to pass a law banning female genital mutilation amid complaints from some activists that the move will not go far enough.
  11. Brussels will make public transportation free on high air pollution days.
  12. President of France Emmanuel Macron proposes sweeping reforms to France’s vast state rail system and cut rail workers special employment rights.
  13. President of South Africa Cyril Ramaphosa announced the makeup of his first cabinet on Monday night, appointing well-respected allies and rivals to key positions but naming as his deputy a provincial power broker with a history of poor management.
  14. The Department of Justice of the United States will back local lawsuits against manufacturers of opioids.
  15. The Government of Venezuela announced it will postpone the presidential election until May 20, allowing an extra month before the vote but doing little to quell critics calling for a boycott.
  16. Bill banning circumcision in Iceland alarms Religious Groups.
  17. The Government of Tasmania promised shooters it plans changes to soften the state’s gun laws that would put it at odds with an updated National Firearms Agreement released last year.

New Scholarship

  1. Joshua C. Gellers & Christopher Jeffords, Toward Environmental Democracy? Procedural Environmental Rights and Environmental Justice (2018) (reporting the results of a statistical analysis showing that states with procedural environmental rights are more likely than non-adopting states to attain environmental justice).
  2. Giuseppe Franco Ferrari, Reijer Passchier and Wim Voermans (eds.), The Dutch Constitution Beyond 200 Years: Tradition and Innovation in a Multilevel Legal Order (2018) (providing the first comparative-thematic coverage of the Constitution of the Netherlands in English).
  3. Michael Hein, Impeding constitutional amendments: why are entrenchment clauses codified in contemporary constitutions? , Acta Politica (examining the empirical factors that influence the codification of entrenchment clauses in contemporary constitutions).
  4. Brannon Denning, Can Judges Be Uncivilly Obedient (2018) (arguing that judicial uncivil obedience –scrupulous attendance to the law as a mechanism of protests– is possible and speculating why uncivil obedience might be a particularly attractive form of dissent by inferior courts in a hierarchical judicial system).
  5. David Pozen, Transparency’s Ideological Drift (2018) (tracing transparency’s drift in the United States from a progressive toward a more libertarian orientation and offers some reflections on the causes and consequences of that drift—and on the possibility of a reversal.)
  6. Rivka Weil, Exploring Constitutional Statutes in Common Law Systems (2018) (arguing that statutes are identified as constitutional based on either the process of their enactment or their content, which may itself be subdivided into two classifications: content in terms of importance and content in terms of entrenchment language, and exploring the ramifications of this new classification).
  7. Desirée C. Schmitt, The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisited (2018) (analyzing the Travel Ban cases in light of the Doctrine of Consular Nonreviewability and its “counsin” the Plenary Power Doctrine).
  8. Kate Andrias, The Fortification of Inequality: Constitutional Doctrine and the Political Economy (2018) (arguing that Judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it, particularly in areas of labor and education).

Call for Papers and Announcements

  1. The Global Justice Journal of the Philippe Kirsch Institute, affiliated with the Canadian Centre for International Justice, is seeking submissions of 1500-2000 words on current issues of international human rights and humanitarian law, transnational and transitional justice.
  2. The American Society of International Law will hold a roundtable on “New Perspectives in International Legal Theory” and is seeking three scholars to present and receive feedback on unpublished papers on topics related to international legal theory.
  3. Richard Albert and Martin Scheinin request submissions for the Workshop on Abuse of the Constitution in Times of Emergency at the 10th World Congress in Constitutional Law, scheduled for June 18-22, 2018 in Seoul.
  4. The International Association of Constitutional Law announces a call for abstracts for the 10th World Congress of Constitutional Law “Violent Conflicts, Peace-Building and Constitutional Law” on 18-22 June 2018 in Seoul. The deadline for a submission of abstracts is 30 March 2018.
  5. The University of Melbourne and the University of Cambridge organize a conference “The Frontiers of Public Law” on 11-13 July 2018 in Melbourne. Online registration is now open.

Elsewhere Online

  1. Rahul Unnikrishnan, Debate: the Supreme Court is Indeed Rescuing Secularism, The Wire.
  2. Dominic Nardi, Indonesia’s Constitutional Court and Public Opinion, New Mandala.
  3. Lyle Denniston, A Second Setback fro Trump Team on DACA, Constitution Daily.
  4. Neil H. Buchanan, Gun Violence: Trump’s Non-Solutions and Some Real Solution, Dorf on Law.
  5. Michael Dorf, Do 18 Years Old Have a Constitutional Right to Guns?, Take Care Blog.
  6. Agustín Casagrande, History, Memory and Pardon in Latin American Constitutionalism, Verfassungs Blog.
  7. David Pozen, Straining (analogies) to make sense of the First Amendment in Cyberspace, Balkanization.
  8. Kim Lane Scheppele, Is the Rule of Law too vague a notion?,
  9. Marci Matczak, The Rule of Law in Poland: A Sorry Spectacle, Verfassungsblog.
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Published on March 5, 2018
Author:          Filed under: Developments
 

“Moralizing” Brazilian Elections: A Judiciary’s Role?

Juliano Zaiden Benvindo, University of Brasília

2018 could not possibly have begun in a more challenging way for Brazilian democracy. On January 24th, a Federal Appeals Court in Porto Alegre, in the south of the country, upheld a conviction against former President Luiz Inácio Lula da Silva for corruption charges. As the most popular President in Brazilian history, with 83% of Brazilians considering his government great or good when he left office in 2010, and an acclaimed leadership in Latin America, this decision would already have been quite a shock. But this is even more true because Lula was a leading contender in the coming national elections in October 2018 (with the polls placing him with in first place). Since the decision could possibly prevent him from running for the presidency, it raised a serious debate over the legitimacy of the judiciary to undertake such an encroachment on will of the people.

Representative Jair Bolsonaro, who is in second place according to those polls, is a far right-wing politician who has not only defended torture and the past military dictatorship, but also is an advocate of anti-gay and pro-gun movements – The Economist named him “Brazil’s Donald Trump.” A symptom of a country afflicted by a severe political crisis and currently governed by the most unpopular president ever in Brazilian history who was accused of racketeering and obstruction of justice by the Attorney-General of the Republic, it is no wonder that populism is knocking on the door. The growing anti-political sentiment and polarization, which history has proven to kill democracies, is naturally raising red flags as elections loom. Yet, if that conviction will likely prevent Lula from running despite the will of the people based on a law aimed at “moralizing” the political system, how can such “morality” deal with a candidate whose background clearly places him on the other side of democratic values? And what is the “moralizing” role of the judiciary before the popular will, if there should be one?

Read the rest of this entry…

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Published on March 4, 2018
Author:          Filed under: Developments
 

Symposium on “Constitutional Amendment and Dismemberment”

Richard Albert, The University of Texas at Austin

Earlier this week, the Yale Journal of International Law published my article on “Constitutional Amendment and Dismemberment.”

The Journal also organized a symposium around the article featuring three responses by (1) Professor David Landau, Florida State University and I-CONnect founding co-editor, (2) Judge Carlos Bernal, Colombian Constitutional Court, and (3) Yaniv Roznai, IDC Herzliya.

The entire symposium is available here.

Here is the abstract of the article:

Some constitutional amendments are not amendments at all. They are self-conscious efforts to repudiate the essential characteristics of a constitution and to destroy its foundations. And yet we commonly identify transformative changes like these as constitutional amendments no different from others. A radically transformative change of this sort is better understood as a constitutional dismemberment, not a constitutional amendment. A constitutional dismemberment is a deliberate effort to transform the fundamental rights, structure, or identity of the constitution without breaking legal continuity. Dismemberment is a descriptive concept, not a normative one; it can either improve or weaken liberal democratic procedures and outcomes. We can accordingly speak of the dismemberment of the Turkish Constitution from democratic to authoritarian, just as we can interpret the Civil War Amendments as dismembering the infrastructure of slavery in the United States Constitution. In this Article, I draw from three types of constitutions around the world—the codified Constitutions of Brazil, Colombia, India, Ireland, Italy, Jamaica, Japan, Saint Lucia, Taiwan, Turkey, and the United States; the uncodified Constitutions of New Zealand and the United Kingdom; the partially codified Constitution of Canada—to introduce the phenomenon, concept, doctrine, and larger theory of constitutional dismemberment. I explain how dismemberment helps address current problems in the study of constitutional change, how it clarifies our understanding of constitutional amendment, and also how it challenges our presuppositions about how constitutions do and should change.

I thank my co-editor David Landau and colleagues Carlos Bernal and Yaniv Roznai for participating in this symposium. Their challenging and constructive responses to my article will help us better understand how constitutions change, and how they should.

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Published on March 2, 2018
Author:          Filed under: Reviews