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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest.


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 found a prominent lawyer and civil rights activist guilty of contempt of court which drew extensive criticism from watchers of the court.
  2. The Constitutional Court of South Africa dismissed former president Jacob Zuma’s leave to appeal application in the defamation case brought by former minister Derek Hanekom.
  3. The High Court of Kenya dismissed a petition challenging the election of Justin Muturi as the Speaker of the National Assembly in August 2017.
  4. The Brazilian Supreme Court decided to receive a constitutional appeal and will judge whether Apple can use the “iPhone” trademark in Brazil, even if another company has submitted it first.
  5. The Court of Appeal of England and Wales ruled that the use of automatic facial recognition (technology by South Wales Police is unlawful.
  6. The United States President vowed to fill any Supreme Court seat that might become vacant during the final months before the country’s elections in November.

In the News

  1. Protests continued against the reelection of Belarusian premier Alexander Lukashenko – vote which many have decried as marred by fraud.
  2. Bulgaria’s Prime Minister Boyko Borissov announced that his GERB party, the bigger partner in the  government coalition, will propose the convening of a Grand National Assembly to discuss a new Constitution drafted by the party.
  3. The Algerian President Abdelmadjid Tebboune called on the relevant state institutions to initiate preparations for the holding of a referendum on a “profound constitutional amendment” that is under consideration.
  4. Sri Lankan President Gotabaya Rajapaksa, who took charge of the Ministry of Defence, kicked off a constitutional controversy about whether the Premier, who is not an MP, could hold a portfolio, a question which might be taken to the Supreme Court for a ruling or get solved by a constitutional amendment.
  5. Concerns were expressed over the Zimbabwe Cabinet’s recent move to introduce another code of conduct for political parties, with some arguing that this would lead to over-regulation as the rules for political parties were already provided for in other statutes like the Electoral Act.
  6. The Chilean President Sebastián Piñera promulgated a constitutional reform that sets limits on the re-election of parliamentarians, mayors (mayors), councilors and local governors.

New Scholarship

  1. Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India 14 (1) Law & Ethics of Human Rights 49 (developing a typology of accountability mechanisms which have been corroded under the current Indian government regime since 2014 and contributed to democratic backsliding).
  2. Gábor Halmai, Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary 14 (1) Law & Ethics of Human Rights 97 (discussing democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country).
  3. Mordechai Kremnitzer and Yuval Shany, Illiberal Measures in Backsliding Democracies: Differences and Similarities between Recent Developments in Israel, Hungary, and Poland 14 (1) Law & Ethics of Human Rights 125 (exploring the relevance of the discourse surrounding the decline of liberal democracy, and its possible relevance for Israeli democracy).
  4. Roger Masterman, The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence? 71(2) Northern Ireland Legal Quarterly 285 (considering the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system).
  5.  Joshua Neoh, Law, Love and Freedom: From the Sacred to the Secular (2019) (sketching the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism)).
  6. Martin H. Redish, Constitutional Remedies as Constitutional Law (Northwestern Public Law Research Paper No. 20-21) (explaining the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches).
  7. Cornelia Weiss, The State of Civil-Military Relations: Falling Short? (2020) (addressing constitutional mandates for military members to receive education in civil-military relations).
  8. Alysia Blackham and Jeromey Temple, Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework  42(3) UNSW Law Journal 1 (bridging theoretical scholarship on intersectionality and empirical statistical evidence of how people experience discrimination in Australia to critically evaluate the extent to which Australian discrimination law is able to accommodate intersectional experiences of discrimination).
  9. Nicola Tommasini, Pedro Riccetto & Yaniv Roznai, When Backlashes & Overrides Do Not Scare: The Power to Review Constitutional Amendments and the Case of Brazil’s Supreme Court, International Journal of Human Rights and Constitutional Studies, 2020 (focusing on Brazil’s Supreme Court as a case study and using rational choice theory to demonstrate how the power to review constitutional amendments gears the Court toward a “sincere” approach to constitutional adjudication).

Call for Papers and Announcements

  1. The International Journal of Parliamentary Studies, a forthcoming, peer-reviewed international journal providing a forum for legislative, procedural, political, comparative, and other matters related to parliaments worldwide, issued a call for paper for its first issue. Manuscript submission deadline is 13th September.
  2. Section 27, a rights-based organization working out of South Africa, released its report on Socio-Economic Rights and Austerity. 
  3. The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics announced an online discussion on September 17 on COVID-19 and the Stakes for Democracy in South America.
  4. The Melbourne Forum on Constitution Building in Asia and the Pacific will hold a series of four online seminars in September 2020, hosted by the Constitution Transformation Network and by International IDEA, the topic for which is “Representation in Democracies During Emergencies”.
  5. The United States Institute of Peace announced an online discussion on August 18 on Sri Lanka’s Parliamentary Elections: A Test of Democratic Institutions.

Elsewhere Online

  1. Mark Tushnet, Our Broken Constitution, Boston Review
  2. Viktor Kazai, Blaming the People is not a Good Starting Point, Verfassungsblog
  3. Joo-Cheong Tham, The COVID-19 pandemic highlights the need to address insecure work, LabourLawDownUnder
  4. Samuel Moyn, Reform the Court, but Don’t Pack It, The Atlantic
  5. Mark Elliot, The Judicial Review Review II: Codifying Judicial Review-  Clarification or Evisceration?, Public Law for Everyone
  6. Aziz Huq, Bostock v. BLM, Boston Review
  7. Michael Bryant, Has COVID-19 quietly killed Canadian Confederation?, Globe and Mail
  8. Kosi Kedem, In order to address inefficiency, Ghana needs to change electoral system or reduce number of legislators, ConstitutionNet
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Published on August 18, 2020
Author:          Filed under: Developments
 

Supreme Crisis: Bolsonaro Threatens to Attack the Brazilian STF

Special Series: Perspectives from Undergraduate Law Students

–Pedro Abrantes Martins, Bachelor’s degree candidate, Federal University of Paraná (UFPR), Brazil; Research Fellow, Brazilian National Council for Scientific and Technological Development; member of the research group “Abusive Constitutionalism and Democratic Erosion,” UFPR

A recent article shed light on president Jair Bolsonaro’s rage towards the Brazilian Supreme Court (STF) and his intention to act on the matter. According to the piece, four anonymous sources claimed that the president wanted to intervene in the Court after it discussed whether Bolsonaro’s cellphone should be seized for an investigation involving the head of State and his son. The president has publicly displayed authoritarian behavior throughout his mandate. Since the beginning of 2020, he has taken part in protests asking for military intervention, yet he managed to stifle the discussion on his acts by denying any anti-democratic intentions. Recent events, however, have brought this discussion back to the forefront.

Bolsonaro is widely known for his autocratic tendencies and has been so even before the 2018 elections that got him to the presidential palace. Nevertheless, much like Donald Trump in the USA, many of his supporters believed that his illiberal rhetoric during the campaign did not mean that he would behave that way in office. However, recent events suggest that he is walking the walk as well as talking the talk. According to Piauí magazine, the president held a closed-door meeting on May 22 where he raised the possibility of intervening in the STF. The accusation is particularly worrying, given that recent years have seen a pattern of increased authoritarianism around the world. Bolsonaro seems to be following in the steps of several other would-be autocrats around the globe, leading Brazil towards a much more dangerous path.

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Published on August 14, 2020
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Going It Alone: The Constitutionality, Feasibility, and Ulterior Motivation of Donald Trump’s COVID-19 Relief Orders

Andrea Scoseria Katz, Washington University in St. Louis, School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

It has been a big week for the power of the pen. Last week, just after imposing sanctions on Chinese media giants TikTok and WeChat, U.S. President Donald Trump signed a flurry of executive orders proposing economic relief measures to keep a flagging U.S. economy afloat despite inaction by a deeply divided Congress. Astonished observers received these actions with what has become a consistent refrain on the administration: “Can he do that?

Although the question is important, it should be disaggregated into two separate inquiries. First, does the President have the legal authority to continue a welfare benefit program that Congress has allowed to expire? Secondly, and more practically, can the plan work?

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Published on August 12, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Teodora Miljojkovic, PhD student, Central European University, Budapest/Vienna

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 Portugal ruled that the Azores Islands’ mandatory 14-day quarantine for visitors is unconstitutional.
  2. Kenyan High Court suspended implementation of President Uhuru’s Executive Order that would put independent state bodies and constitutional commissions, such as the Parliamentary Service Commission and Judicial Service Commission, under the direct control of the Attorney General and Cabinet Secretaries. Judge Makau stated that the implementation of the order could potentially jeopardize the principle of separation of powers and the rule of law, but also seriously affect the public interest.
  3. The Supreme Court of Poland approved the validity of the last month’s presidential elections in which conservative leader Andrzej Sebastian Duda won with 51%, despite its acknowledgement of dozens of irregularities.
  4. The Special Tribunal for Lebanon postponed its verdict in the trial over the 2005 bombing that killed former Lebanese Prime Minister Rafik al-Hariri, out of respect for the victims of the Beirut explosion, which took place on August 4th.
  5. The full U.S. Court of Appeals for the District of Columbia Circuit ruled the House of Representatives Judiciary Committee had legal standing to seek to enforce the Democratic-led congressional panel’s subpoena for testimony from former White House Counsel Donald McGahn.  

In the News

  1. Trump issued an executive order that would ban social media apps TikTok and WeChat from operating in 45 days if their Chinese-owned companies do not sell them. The Trump administration’s decision was based on alleged threat the apps impose on national security, although experts claim that such a concern might not be warranted.
  2. The Delhi High Court dismissed a petition filed by an Army officer, challenging the Indian Army’s notification banning 89 applications including TikTok, WeChat, Facebook, Instagram and others.
  3. A Belgian court rejected Spain’s demand to have the former Catalan politician Lluis Pugi extradited upon the European arrest warrant on the grounds of his alleged illegal involvement in an independence referendum. The court stated that “Spanish authorities who issued the warrant had no competence to do so.” The Brussels prosecutor’s office may appeal the decision.
  4. The Intermediate People’s Court of Foshan City in Guangdong Province sentenced to death two Canadian citizens over drug charges.
  5. Human Rights Watch calls for an international independent investigation into the Beirut’s explosion of the shipping port that devastated the city and caused numerous casualties.
  6. New York’s Attorney General filed a lawsuit against the National Rifle Association on the grounds of corruption and misspending, seeking its closure. NRA struck back with a federal lawsuit against the office of the attorney general, claiming the violation of NRA’s First Amendment rights.
  7. Louisiana Supreme Court will not review life sentence for a man who stole hedge clippers back in 1977, despite the attorney’s claim that the sentence in today’s perspective seems too severe.
  8. The High People’s Court of Jiangxi in China has declared Zhang Yuhuan, 53, the country’s longest-serving wrongfully convicted person not guilty in a retrial after almost 27 years in prison.

New Scholarship

  1. David Kosař and Katarína Šipulová, How to Fight Court-Packing (2020) (proposing a theoretical framework for the analysis of court-packing, identifying strategies which governments employ in order to curb the judiciary)
  2. Bui Ngoc Son, Constitutional Change in the Contemporary Socialist World (2020) examining the constitutional change in the five current socialist countries, namely China, Cuba, Laos, North Korea, and Vietnam)
  3. Nicola Curato, Jensen Sass, Selen A Ercan and Simon Niemeyer, Deliberative Democracy in the Age of Serial Crisis (2020) (offering a descriptive and reflective assessment of the developments in the field of deliberative democracy research)
  4. Mario Alberto Cajas-Sarria, Defending the Judiciary? Judicial Review of Constitutional Amendments on the Judiciary in Colombia (2020) (mapping the trajectory of the review of constitutional amendments on the judiciary in Colombia, suggesting that one of the factors that could explain the judicial activism of constitutional judges is the defence of the judicial branch)
  5. Donald Bello Hutt, The Deliberative Constitutionalism Debate and a Republican Way Forward (2020) (exploring the state-of-the-art of deliberative constitutionalism, pointing out the limitations of the current literature, and proposing how they can be overcome by adopting a republican understanding of representative deliberative democracy)

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism invites scholars of all ranks to participate in The Global Summit, a virtual conference operating in six different languages.
  2. The Universidad Torcuato Di Tella invites application for an Assistant or Associate Professor position in its School of Law. The applicants should submit their applications no later than September 14th, 2020 to postulación.derecho@utdt.edu. The application included cover letter identifying their research and teaching interests, CV, three letters of recommendation, up to two published or unpublished academic papers and teaching evaluation or syllabi, where applicable. The applicants should be able to teach in Spanish. For further details, contact Dean Martín Hevia at mhevia@utdt.edu.
  3. The Israel Democracy Institute invites participants to the special seminar “Democratic Backsliding: a View from Poland and Beyond” which will be held via Zoom on August 10th 2020. The webinar will host Prof.Wojciech Sadurski who will discuss the findings of  his book “Poland’s Constitutional Breakdown” through a comparative outlook, together with Prof. Yuval Shany, Prof. Yaniv Roznai, Dr. Tamar Hostovsky Brandes,  Prof. Mordechai Kremnitzer, Dr. Hassan Jabareen and Dr. Dana Blander. Register here.
  4. The Comparative Constitutional Law Research Forum of CUHK LAW’s CCTL calls for chapters for the Handbook of Constitutional Law in Greater China (to be published by Routledge by late 2022). Chapters may be theoretical, historical, empirical, or doctrinal. They may offer comparative insight across two or more of the relevant jurisdictions or focus on a specific issue within a single one. Submissions (abstract of up to 500 words) should be sent to stuart.hargreaves@cuhk.edu.hk no later than October 1st 2020.
  5. The Ruhr-Universität Bochum invites applications for a Postdoctoral Position in Experimental Legal Philosophy. Candidates should submit a CV and a letter of motivation to clbc@rub.de no later than August 20th, 2020. For further information,   contact: Prof. Dr. Stefan Magen (clbc@rub.de).
  6. The Department of Political Science at Aarhus University invites applications for a 2-year postdoctoral position in a new research project titled “Populism and Democratic Defence in Europe”. The project involves five partner institutions: Roskilde University, University of Warsaw, University of Wroclaw, Lund University and Aarhus University. Interested applicants should submit their applications no later than September 17th. Applicants are strongly encouraged to contact Associate Professors Tore Vincents Olsen per email: tvo@ps.au.dk or Fabio Wolkenstein per email: wolkenstein@ps.au.dk before submitting their application.
  7. The University of Milan, Legal Department Cesare Beccaria invites applications for PhD positions in law, with particular reference to criminal law and procedure, Roman law, history, philosophy and sociology of law, and ecclesiastic and canon law. Deadline for submission is September 14th 2020.
  8. The Department of Legal Studies at Central European University (CEU) invites applications for an Assistant Professor in international human rights law. Applicants with expertise in the United Nations, human rights, protection mechanisms, and interests in the implications of international refugee and migration law are strongly preferred. Deadline for applications is September 30th, 2020.
  9. Union University Law School Review “Pravni Zapisi” invites submissions for the 2/2020 issue. The deadline for application is October 10th, 2020. Applicants may submit papers on topics of a wide spectrum of law areas, with the particular reference to the constitutional law, human rights law, international public law and EU law.

Elsewhere Online

  1. Marek Domin, Judicial Reform in Slovakia: How to Deal with “Bad Judges”?,  IACL-AICD Blog
  2. Eirik Holmøyvik, Strasbourg  Slams Old Democracies on Elections, Verfassungsblog
  3. Marci A. Hamilton, Religious Entities Flex Their Muscles Through the Roberts Court, Playing Both Sides of the Discrimination Coin, VERDICT
  4. Caroline De Gruyter, European Values are Non-Negotiable, EUobserver
  5. Katalin Cseh, An open letter to the EPP on end of Hungary’s press freedom, EUobserver
  6. Usang Maria Assim, How a South African court case reminded adults of the rights of children, The Conversation
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Published on August 10, 2020
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Call for Papers — Constitutional Space for Cities


Constitutional Space for Cities

April 7th – 8th, 2021

Call for Papers

Cities are drivers of the world’s economy:  they are home for most of the world’s population and create a large percentage of its’ wealth.  Nevertheless, municipal governments struggle to invest in appropriate infrastructures and necessary services, leading to considerable gaps in affordable housing, public transit, and social services.  This conference, on “Constitutional Space for Cities” and its’ associated papers, will seek to understand and explain why … and propose paths forward for Cities in Canada.

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Published on August 9, 2020
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The Instrumentality of Metadata Access Regime for Suppressing Political Protests in Australia


Genna Churches, PhD Candidate, Faculty of Law, UNSW Sydney, and Monika Zalnieriute, Senior Lecturer, School of Law, Macquarie University


Australians, just like many other people around the world, are taking to the streets. What started as a few small sparks earlier in a year — Greta, school strikes, Extinction Rebellion — unraveled during Australian bushfires crisis, spread to anti-lockdown protests over COVID-19 restrictions, and now exploded into massive protests on racial injustice with ‘Black Lives Matter’, the ‘Aboriginal deaths in custody’ movement and calls to tear down statutes of a racist colonial legacy. Strong consciousness of racial and environmental injustice is driving the protests, despite the COVID-19 risk of mass gatherings.

As we show below, Australian politicians have expressed strong disdain, and even threats, at protesters well before COVID-19 pandemic. Government desire to silence critics is not new, however today’s digital technologies and Australia’s slack federal metadata laws give the Government unprecedented tools to find out who has attended the protests, and take action. These tools, coupled with new COVID-19 powers to surveil citizens, have seriously impaired the right to protest anonymously in Australia.  In this post we are not disputing the need for restrictions on mass gatherings or social distancing — to the opposite, we think they are crucial to stop the spread of virus. Instead, we are exposing the instrumentality of metadata, including location data, for the government to clamp down on peaceful protests. As the High Court of Australia noted, the right to peaceful protest is vital to Australian democracy, given the only other voice for the public is at the ballot box. In this post, we propose one small step towards securing that right — a right that will be needed once the pandemic is under control and the restrictions are eased. That small step is reforming the laws so that our metadata can only be accessed with a judicial warrant.

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Published on August 4, 2020
Author:          Filed under: Analysis
 

What’s New in Public Law


Matteo Mastracci, PhD Researcher, Koç University, Istanbul

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. France’s Constitutional Council struck down the main provisions of the Avia law forcing online platforms to delete hate-speech contents.
  2. Mexico’s Supreme Court rejected a proposal that could have paved the way for the decriminalization of abortion across the country.
  3. The Constitutional Court of Bulgaria dismissed two cases concerning amendments to the Health Act and the Cabinet investigations of the Prosecutor General.
  4. The Constitutional Court of Turkey rejected CHP opposition party’s appeal against multiple bar associations law.
  5. The European Court of Human Rights refused to apply an interim measure in the case concerning constitutional reform in Armenia.
  6. The Portuguese Constitutional Court ruled on the relationship between EU law and the Constitution of the Portuguese Republic clarifying the principle of primacy and the legal orders’ reciprocal limitations.

In the News

  1. Kyrgyzstan’s lawmakers passed a draft legislation which would allow to censure online information by cutting off websites and social media accounts without a court ruling. 
  2. Malta’s political forces agreed on constitutional amendments which will give greater powers to the President and change the method of appointment of the Head of State.
  3. On 29 July, the Turkish parliament approved AKP’s bill that strengthens control over social media companies.
  4. The acquittal of two right-to-die activists in Italy might push the Italian Constitutional Court to declare the unconstitutionality of Article 580 of the Italian Penal Code and to legalize the physician-assisted suicide.
  5. The Albanian Parliament approved a motion to not impeach President Meta for serious violations of the constitution.
  6. The Chairman of the Executive Committee of the National Council for Reforms of Ukraine proposed a nationwide referendum over the disbanding of the Constitutional Court of Ukraine.
  7. The Constitutional Court of Romania will rule on the law establishing a minimum income for a decent living.
  8. The Italian Senate and the Chamber of Deputies approved the government extension of the state of emergency in the country over coronavirus till October 15.
  9. The Minister of State for Parliamentary Affairs agreed to discuss a legislative proposal to establish a Constitutional Court in Pakistan following the model of the U.S. Supreme Court.

New Scholarship

  1. Richard Albert, Trudeau’s Threat: The Referendum at Patriation (2020) (recovering the history of Pierre Elliott Trudeau’s threat to use a referendum to patriate the Canadian Constitution in 1982).
  2. Andrew Koppelman, Gay Rights vs. Religious Liberty? (2020) (addressing theoretical and practical queries on the conflict between gay rights and religious liberty)
  3. David Pozen and Kim Lane Scheppele, Executive Underreach, in Pandemics and Otherwise (forthcoming 2020) (introducing the phenomenon of executive underreach as a new form of illiberalism in reference to the COVID-19 crisis)
  4. Edward A. Purcell Jr., Antonin Scalia and American Constitutionalism (2020) (examining whether Scalia’s judgments were consistent with his jurisprudential theories)
  5. Giuliano Amato, Benedetta Barbisan and Cesare Pinelli, Rule of Law vs Majoritarian Democracy (forthcoming 2021) (exploring tensions and paradoxes of ROL, electoral democracy and illiberal political movements in selected Western countries)
  6. Jorge M. Farinacci- Fernós, Original Explication: A Democratic Model for the Interpretation of Modern State Constitutions (2020) (advancing an intent-based method of constitutional interpretation that privileges the official deliberation of the constitutional drafting body)
  7. Paul Yowell, Constitutional Rights and Constitutional Design (2020) (offering a critical insight on the Court’s empirical reasoning and the judicial review provisions in the design of constitutional rights)
  8. Vlad Perju, Against Bidimensional Supremacy in EU Constitutionalism (forthcoming 2020) (challenging conceptually and interpretatively the EU supremacy as a necessarily bidimensional phenomenon of supranational and national dimensions)
  9. Xenophon Contiades and Alkmene Fotiadou, Routledge Handbook of Comparative Constitutional Change (2020) (providing a comprehensive understanding of the importance of constitutional change mechanisms and tools in the study of constitutional law)

Call for Papers and Announcements

  1. African Yearbook of International Law welcomes submission for its special theme of Volume 24 on African Regional Law and Health: Present Status and Prospects. The deadline for submissions is November 15, 2020.
  2. Indian Society for Legal Research (ISLR) organizes the 1st virtual summer school on “International Legal System in the Age of Pandemic”.
  3. The Department of Legal Studies at Central European University (CEU) invites applications for an Assistant Professor in international human rights law.
  4. The International Journal of Comparative and Applied Criminal Justice invites submissions for the special issue on “Crime Prevention in Ibero-America”. The deadline for abstract submissions is August 31, 2020.
  5. The Law Department of the European University Institute (EUI) with the support of the European Society of International Law (ESIL) invites submissions for a two-day Doctoral Forum on International Law “Practising Reflexivity in International Law”. The deadline of abstract submission is September 13, 2020.
  6. The Max Planck Institute for European Legal History offers a Postdoctoral Research Fellow in the Department for European and Comparative Legal History for the research field “Legal Transfer in the Common Law World”. The application must be submitted by August 31, 2020.
  7. The Singapore Management University (SMU), School of Law invites distinguished scholars to apply for the Lee Kong Chian International Visiting Professor (LKC Professor) position to begin in August 2021, for a two months period. The application deadline is set on December 10, 2020.
  8. The Working Group on discrimination against women and girls invites contributions to present a thematic report on women’s and girls’ sexual and reproductive health and rights (SHRC) in situation of crisis to the 47th session of the Human Rights Council in June 2021. The deadline is August 31, 2020.

Elsewhere Online

  1. Anjali Busar, Supreme Court’s decision in the case of Bostock v. County: a crowning glory, yet not enough?, IJLPP IL Blog
  2. Bertil Emrah Oder, Attacking the Bar Associations, Verfassungsblog
  3. Lando Kirchmair, Turning Hagia Sophia into a mosque (again), Vöelkerrechtsblog
  4. Lorenzo Zucca, Much ado about uncertainty: how Shakespeare navigates doubt, PSYCHE
  5. Lucas Brang, The Counter-Enlightenment Strikes Back, Verfassungsblog
  6. Rachel Lopez, The Law of Gravity: A Newtonian Proposal for Public International Law, OpinioJuris
  7. Shamshad Pasarlay and M. Basher Mobasher, Electoral Crises, Peace Process with Taliban and Constitutional Reform in Afghanistan, ConstitutionNet
  8. Stefanía Rainaldi, Symposium: The Sabalsagaray Case: A Uruguayan Example of the Integration of International Human Rights Law with Constitutional Law, IACL-AIDC Blog
  9. Steve Peers, Family reunion, the rights of the child and effective remedies: latest CJEU judgment, EU Law Analysis
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Published on August 3, 2020
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ICON Volume 18, Issue 2: Editorial

Orbán and the self-asphyxiation of democracy; Publishers, academics and the battles over copyright and your rights, Part I; Festschrift? ‘That which is hateful to you, do not do to your fellow! That is the whole Torah; the rest is interpretation’ (from the Elder Hillel in Babylonian Talmud, Shabbat 31a); In this issue

Orbán and the self-asphyxiation of democracy

It came as no big surprise that Orbán has used COVID-19 to dismantle further the checks and balances that are an integral part of any functioning democracy. On March 30, 2020, with the authorization of the Hungarian Parliament (in which the government has a large majority), an Act was passed,[1] which effectively gave the government sweeping powers to rule by decree. It is not unusual in times of emergency for the executive branch to revert to extraordinary measures, though in this case they have a Hungarian twist: the new law is of indeterminate duration (though Parliament can end it when it sees fit—in the case of Hungary de facto when the Executive sees fit) and the powers granted exceed those necessary to deal with COVID.

More ominously, alongside that enabling law, the Penal Code was amended, permanently, to introduce two new crimes—punishable by up to five years’ imprisonment for any activity that interferes with the government in the discharge of its emergency responsibility and for any publication “distorting the truth” that might alarm a large number of persons—which I imagine could mean any publication that contradicts the government narrative. I consider this part of the package far, far more pernicious.

There have also been reports of government changes to the education package in schools to bring it into conformity with the government view of Hungarian history and “appropriate” Hungarian authors.

Hungary has deepened further its “illiberal democracy” —a juicy oxymoron.

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Published on August 2, 2020
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ICON’s Latest Issue: Table of Contents

Volume 18 Issue 2

Table of Contents

Editorial

ICON·S Reflections

Wojciech Sadurski, Constitutional democracy in the time of elected authoritarians

Luis Roberto Barroso, Technological revolution, democratic recession and climate change: The limits of law in a changing world

I·CON Foreword

Neil Walker, The sovereignty surplus

Reflections on Gender and Public Law: Eight Views

Christopher McCrudden, Resurrecting positive action

Barbara Havelková, The struggle for social constructivism in post-socialist Central and Eastern Europe

Ruth Rubio-Marin, Gendered nationalism and constitutionalism

Anna Śledzińska-Simon, Populists, gender and national identity

Julieta Leimatre, Transitional justice and the challenges of a feminist peace

Chao-ju Chen, Single equality in the age of marriage equality

 Veronica Undurraga, Engendering a constitutional moment: The quest for parity in the Chilean constitutional convention

 Stefano Osella, “De-gendering” the civil status? A public law problem

Articles

Jan Petrov, The populist challenge to the European Court of Human Rights

Tom Gerald Daly and Brian Christopher Jones, Parties versus democracy: Addressing today’s political-party threats to democratic rule

Critical Review of Jurisprudence

Marco Wan, The invention of tradition: Same-sex marriage and its discontents in Hong Kong

Special Section: From the Trenches

Sanjay Jain and Saranya Mishra, Scandalizing the judiciary: Analysis of the uneven response of the Supreme Court of India to the sexual harassment allegations against judges

The I•CONnect-Clough Center 2019 Global Review of Constitutional Law

Maja Sahadžić, 2019 Global Review of Constitutional Law: Bosnia and Herzegovina

Malkhaz Nakashidze, 2019 Global Review of Constitutional Law: Georgia

Jasmina Dimitrieva and. Lydia Tiede, 2019 Global Review of Constitutional Law: North Macedonia

Occasional Series: Constitutional Surveys

Piotr Radziewicz,Monika Florczak–Wątor and Marcin M. Wiszowaty, Survey on the Constitution of the Republic of Poland. The results of the research conducted in 2017-2018

Law and Gender in the Literature

Hillary Potter. Intersectionality and Criminology: Disrupting and Revolutionizing Studies of Crime; Shreya Atrey. Intersectional Discrimination (Arushi Garg)

Ruth Rubio-Marín and Will Kymlicka eds. Gender Parity & Multicultural Feminism (Ofra Bloch)

Ratna Kapur. Gender, Alterity and Human Rights: Freedom in a Fishbowl (Cara Röhner)

Irini Papanicolopulu (ed.). Gender and the Law of the Sea (Isabel Lischewski)

Libby Adler. Gay Priori. A Queer Critical Legal Studies Approach to Law Reform (Estefanía Vela-Barba)

Book Reviews

Richard Albert. Constitutional Amendments. Making, Breaking, and Changing Constitutions (Eoin Carolan)

Adrienne Yong. The Rise and Decline of Fundamental Rights in EU Citizenship (Dimitry Kochenov)

Moritz Baumgärtel. Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability (Lena Riemer)

Gautam Bhatia. The Transformative Constitution: A Radical Biography in Nine Acts (Sandeep Suresh)

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Published on August 2, 2020
Author:          Filed under: Editorials
 

Traces of Constitutional Reasoning in Latin America and the Caribbean – Regional Cosmopolitanism Without Backlash?

Johanna Fröhlich, Pontifical Catholic University of Chile

Latin America is claiming a leading position in global constitutional trendsetting, as its rich constitutional traditions keep inspiring new experiments and novel constitutional theories for seeking structural change. Transformative constitutionalism, Andean neo-constitutionalism or the idea of a distinct Latin American Ius Constitutionale Commune have all trusted judges, and especially justices of constitutional courts, with a great deal of responsibility in order to secure progress in eliminating structural inequalities, social injustice and the sweeping violence from Latin American societies. After a long history of interbranch crises with courts and numerous instances of attacks on judges and judicial institutions, some hold that there has been an “ideological shift” (Helmke&Ríos-Figueroa 2011, 2.) concerning the role of judges in the region. This shift is said to have brought not only the dominance of human rights in modern constitutionalism, but it generated a self-empowered image of judges adapted to the task of approximating the gap between the deficient social, political and institutional environment and law’s hopes to transform society. A robust empirical component, however, is still lacking to test constitutional courts’ activities and their outcomes under the “postwar paradigm”. In order to better understand judicial decision-making through reasoning, as well as the current trends and future perspectives of constitutional review in the region, it seems necessary to seek verifiable answers about what courts are actually doing in Latin America.

The Project on Constitutional Reasoning in Latin America (CORE Latam) seeks to advance the field by engaging with those questions. The project started in 2018 as a special regional follow-up of the CONREASON Project coordinated by András Jakab, Arthur Dyevre and Gulio Itzkovich (Comparative Constitutional Reasoning, CUP 2017). The CORE project aspires to contribute to a flourishing field of research by placing Latin America on the cartography of studies on comparative courts. The aim is to discover and explain the distinct features of constitutional reasoning in fifteen different jurisdictions[1] including the Inter-American Court and the Caribbean Commonwealth, and to identify correlations and trends on a regional and sub-regional level. In order to achieve this goal, the empirical methodology of the CONREASON project was partially redesigned in line with the unique characteristics of the Latin American constitutional environment. After two years’ work, the team had its second yearly meeting on June 11-12, in order to present the results of the quantitative analysis, using a sequence of fifty indicators that were created to analyze the forty most important landmark cases from each of the fifteen jurisdictions. This short summary strives to share the most exciting and thought-provoking preliminary results based on the raw dataset. Although at this point, there are far more questions than answers, it is worthwhile making allowances for our doubts too.

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Published on July 30, 2020
Author:          Filed under: Analysis