—Alessandro Nato, Post-Doctoral Research Fellow, LUISS University; Caterina Mariotti, PhD candidate, LUISS University and Paris 2 Panthéon Assas; Paolo Fernandes, PhD candidate, Tor Vergata University
On 12 April 2019, the Departments of Law and Political Science at LUISS Guido Carli University hosted a symposium on “Separation of Powers within and beyond Europe: The Evolution of a Foundational Concept.” The Symposium brought together LUISS visiting professors and faculty members to discuss how the classic topic of the separation of powers has changed both in the European multilevel-system and beyond.
In this Conference Report, we summarize the conference proceedings for the benefit those members of the I-CONnect community unable to attend.
—Nausica Palazzo, Ph.D. Researcher in Comparative Constitutional Law (University of Trento)
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
The Court of Justice of the
European Union (CJEU) found a section of the trade agreement between the Union
and Canada on the resolution of investment disputes between investors and
states consistent with EU law.
The CJEU ruled for Airbnb in a case challenging French real
estate laws.
The Constitutional Court of
South Korea held the criminal ban on abortion at the early stages
of pregnancy unconstitutional.
The Constitutional Court of
South Africa postponed the judgment on the
constitutionality of the Electoral Act until after the next week’s elections.
The Act does not recognize the right of independent candidates to stand for an
election.
The U.S. Supreme Court refused to stay the decision in a major second-amendment
case until proposed legislation on firearms in New York City is passed.
The Constitutional Court of
Italy ruled that serious mental illness is a ground to spare
prison and grant house arrest.
In the News
The Supreme Court of Kansas upheld an injunction against a state bill banning dilation
and evacuation abortions in Kansas.
The Spanish board of
elections blocked Puigdemont standing as a MEP in next EU
Parliament elections.
Conservatives and Labour suffer heavy losses in UK local elections, while
parties opposing Brexit gain seats.
The Upper House of the
Parliament of Mexico failed to approve the President’s bill overturning
education overhaul by former President Nieto.
The Constitutional Review Commission
of Gambia engaged in external consultations with Gambians living
in the diaspora to draft the new Constitution.
The Turkish High Election
Board ordered an investigation into allegations of
irregularities into the local election in Istanbul, won by the main opposition
party.
In Colombia, the prosecutor
general launched an investigation into the espionage of
Constitutional Court’s magistrates.
The first Maori judge and
expert on indigenous rights joined the Supreme Court of New Zealand.
Or Bassok, The Mysterious Meeting between Carl Schmitt and Josef Redlich (2019) (revealing a mysterious meeting in 1931 between Carl Schmitt and Harvard professor Josef Redlich that had a profound impact on Schmitt’s adoption of National Socialist legal theory)
Günter Frankenberg, Comparative Constitutional Studies Between Magic and Deceit (2019) (providing an account of the hidden stories, framers’ aspirations and goals, and normative theories behind constitutions with a view to encouraging realism in constitutional research)
Christophe Geiger and Elena Izyumenko, Towards a European ‘Fair Use’ Grounded in Freedom of Expression, 35 American University International Law Review (2019 forthcoming) (advocating the introduction in EU copyright law of an open-ended clause, like the U.S. “fair use” clause, grounded in freedom of expression)
Mary Ann Glendon, Making the Case for Religious Freedom in Secular Societies, 33 Journal of Law and Religion (2019) (exploring how do we make the case for the fundamental human right of freedom of religion and belief to different sorts of audiences in a world where that right is little valued)
David Landau, Hannah Jacobs Wiseman and Samuel R. Wiseman, Federalism for the Worst Case, 105 Iowa Law Review (2019 forthcoming) (providing a new institutionally-focused account of the relationship between federalism and tyranny, based on case studies of Russia and Turkey)
Ilenia Ruggiu, Culture and the Judiciary: The Anthropologist Judge (2019) (providing an in-depth case law analysis to trace the legal techniques used by Western judges to face the challenges posed by multiculturalism)
Deborah Tuerkheimer, Beyond #MeToo, New York University Law Review (2019 forthcoming) (examining the overlooked informal avenues for complaint in sexual misconduct cases in the US and arguing that the design of the formal reporting channels should be informed by the benefits of informal reporting)
Calls for Papers and
Announcements
The UNSW Law hosts
a conference on “Protecting Rights, Addressing Inequality: The Writs as
Constitutional Transfer,” to be held on 15-16 November 2019. The deadline
for abstracts is May 10, 2019.
The Leuven Centre for Public Law (LCPL) and RIPPLE
(Research in Political Philosophy Leuven) invite submissions for a
conference on “Democratic renewal in times of polarization,” which
will be held in Leuven on September 19-20, 2019. Interested candidates must
submit their proposals (short abstract of the paper and CV) to Ronald Van
Crombrugge at ronald.vancrombrugge@kuleuven.be by June 10, 2019.
The Minerva Center for Human Rights Faculty of Law,
the Hebrew University of Jerusalem and the International Committee of the Red
Cross invites submissions for the
conference “Military Justice and Armed Conflict: Old Problems, New Challenges.”
The deadline for submissions is June 1, 2019.
The European Law Journal published a Special Issue on
“Internet and Human Rights Law,” edited by Oreste Pollicino and Mart
Susi. The issue focuses on the impact of the new digital technologies on clusters
that are at the heart of constitutional law and constitutional theory, such as separation
of powers, legitimacy, legal reasoning and fundamental rights.
The Scuola Superiore Sant’Anna invites applications for the Summer
School “The Regulation of #Robotics & #AI in Europe: Legal, Ethical and
Economic Implications,” to be held in Pisa, Italy on July 1-6, 2019. The
deadline for applications is May 16, 2019.
The UNESCO Chair on Gender Equality and Sustainable
Development invites applications for a one-week
international summer academy on “Women’s Empowerment for Sustainable Development.”
The deadline for regular applications is July 14, 2019, and the deadline for
scholarship application is May 31, 2019.
The University of California at Davis School of Law invites applications for the position
of a Clinical Lecturer in Water Justice, who will act as the director of the
Aoki Water Justice Clinic, by May 19, 2019, and/or until the position is
filled.
Richard Albert (Texas), Tom Ginsburg (Chicago), and David Landau (Florida State) invite friends of I-CONnect to our happy hour at the ICON-S 2019 Annual Conference in Santiago.
All are welcome on Sunday, June 30, from 6:30pm to 8:30pm at Quitral, located within walking distance from the conference venue at this address: Jose Victorino Lastarria 70 – Local 4 – Paseo Lastarria.
Attendees will benefit from a discount of 15 percent off all food and beverages, thanks to the kind help of our colleague Sergio Verdugo (Universidad del Desarrollo).
The I-CONnect editors look forward to seeing you there!
[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 2019, see here.]
Leadership
change is an incredibly dangerous period in any system of highly centralized
and personalized government. This is
true of much of the post-Soviet region where many presidents wield vast constitutional
and informal power. Relinquishing (or losing) presidential power threatens both
the interests of the outgoing president as well as his network of supporters. For instance, in Uzbekistan in 2016, President
Islam Karimov died in office. This has
led to the prosecution of Karimov’s daughter and
other close associates, including Karimov’s Prosecutor General.
On March
19, 2019, one of the most well-established post-Soviet presidents–Nursaltan
Nazarbaev of Kazakhstan–resigned from the presidency after 30 years. Although some declared this resignation to be
a shock, Nazarbaev’s resignation is
a clear attempt to ensure a “controlled
transition” of power. The precise day of his resignation suggests that this
announcement was premeditated: Nazarbaev relinquished his power the day before Navruz,
the Persian New Year, and which has broad significance in Kazakhstan.
Furthermore, the constitutional precursors for his resignation have been a long time in the making. In 2007, Nazarbaev assumed the formal role of “Founder of Independent Kazakhstan, First President of the Nation” (Elbasy in Kazakh) in the Kazakh Constitution. In 2017, he pushed through constitutional changes that weakened the power of presidency. In 2018, he signed a constitutional law increasing the power of the Security Council and making the “First President of Kazakhstan”—i.e. himself—the Chair of the Security Council for life. Furthermore, in early 2019, he asked the Constitutional Council whether the constitution would allow the president to give up his powers early. Not unsurprisingly, the court said yes. In his March 19 speech announcing his resignation, he reminded the Kazakh people that he would continue as leader of the nation, head of the powerful Security Council, and head of his party.
—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
The Constitutional
Court of Italy found
parts of a presidential decree that established a minimum sentence of eight
years for crimes the production, trafficking, and illicit possession of
narcotic and psychotropic substances unconstitutional.
The
Supreme Court of Uganda upheld a
2018 judgment that affirmed the constitutionality of the removal of term limits
on the presidency.
The Supreme
Court of Afghanistan extended the term of the sitting President until the delayed election takes
place.
The
Supreme Court of India constituted a committee over an affidavit filed by an
advocate who claimed to have evidence of a conspiracy to implicate the sitting
Chief Justice of India in a sexual harassment case.
The
Supreme Court of India issued notice to the primary leader of the Opposition over charges that he
deliberately misrepresented the nature of certain orders passed by the Court
which related to corruption charges against the sitting Prime Minister.
The
Supreme Court of the United States will hear three cases on whether Title VII, a federal law banning sex-based
employment discrimination, also prohibits discrimination against gay and
transgender employees.
The
Supreme Court of the United States heard cases over whether the administration can ask all recipients a
citizenship question in the 2020 census for the first time since 1950.
The
Supreme Court of Myanmar rejected the appeal of two Reuters reporters sentenced to seven years in prison
for breaking the Official Secrets Act, in a landmark case that has raised
questions about the country’s transition to democracy.
The
Supreme Court of Namibia upheld a High
Court ruling, which rejected a Government request to ban the publication of a
news article on national security grounds.
Justice
Qazi Muhammad Amin Ahmad, a former judge of Lahore High Court from November
2014 to March 2019, took oath as a judge of Supreme Court of Pakistan.
In the News
The Disciplinary Chamber of the Supreme Court of Poland, populated exclusively by judges appointed after the controversial government reforms, ruled that the process by which they were appointed was lawful.
The government of Sri Lanka announced a nationwide emergency that gives police and the military extensive powers to detain and interrogate anyone without a court order.
The President of Guinea is planning to organize a referendum to remove the presidential term limits.
The President of the United States claimed that he would turn to the US Supreme Court in the event of an attempt by Congress to impeach him.
A former female employee of the Supreme Court of India accused Chief Justice Ranjan Gogoi of sexual harassment. An ad-hoc hearing by a bench set up by the Chief Justice was criticized for perceived attempts to discredit the complainant, which resulted in the constitution of an in-house inquiry to the matter.
The President of Mali announced that national consultations on constitutional reform will take place at the end of April.
The Parliament of Barbados passed a constitutional amendment to eliminate mandatory death penalty sentences.
New Scholarship
The
German Law Journal published two special issues on “Public Law and Populism” and “Populist Constitutionalism” putting together articles by scholars
from a wide range of disciplinary and jurisdictional backgrounds which explore
the relationship between populism and the law.
Gautam
Bhatia, The Transformative Constitution: A Radical
Biography in Nine Acts
(2019) (drawing on pre-Independence legal and political history to argue that
the Constitution of India was intended to transform not merely the political
status of Indians from subjects to citizens, but also the social relationships
on which legal and political structures rested)
Amy
Kapczynski, The Right to Medicines in an Age of
Neoliberalism, 10(1)
Humanity Journal (2019) (examining case law on the “right to medicines” and arguing
that even socio-economic human rights may intensify inequality and reproduce
neoliberal logics, if they simply overlay the existing political economy)
Ruth
Rubio-Marín and Helen Irving (eds.), Women as Constitution-Makers. Case Studies
from the New Democratic Era
(2019) (presenting a series of comprehensive case studies of women’s campaigns
for constitutional equality in nine different countries that have undergone
constitutional transformations in the “participatory era”)
Aziz
Huq, A Tactical Separation of Powers?, Constitutional Court Review (2019
forthcoming) (exploring the possibility that courts can play a role in
arresting damage to constitutional democracy, through an analysis of four
decisions in which the Constitutional Court of South Africa responded to a
threat of stat capture)
John
Yoo, A Defense of the Electoral College in the
Time of Trump, 46(4) Pepperdine
Law Review (2019 forthcoming) (cautioning against an overreaction to the 2016
election despite the failure of the Electoral College to filter out a candidate
such as Trump, and arguing against the alternative of direct democracy)
Michael
D. Gilbert and Mauricio Guim, The Active Virtues (2019) (arguing that courts exercise
active virtues to attract “congruent” cases, in which law and politics align
that enable the judiciary to grow stronger)
Gregory
Ablavsky, Empire States: The Coming of Dual
Federalism, Yale Law
Journal (2019 forthcoming) (offering an alternative account of federalism’s
late eighteenth-century origins, against accounts that portray federalism as a
repudiation of models of unitary sovereignty)
The
UCD Centre for Constitutional Studies invites submissions for its first Constitutional Work-in-Progress workshop, to
be held in Dublin, on June 21-22. The deadline for submission of papers is May
8.
The
Goethe University Frankfurt, Universidad Autónoma De Madrid, Universidad De
Valencia, Università Di Ferrara, and The Max Planck Institute For European
Legal History invite proposals for a workshop on “Weimar Moments: Constitutionalising Mass
Democracy in Germany, Italy, Spain, And Beyond,” to be held on November 13-15,
2019, in Madrid. The deadline for paper proposals is June 1.
The
Beazley Institute for Health Law and Policy at Loyola University Chicago School
of Law and Annals of Health Law & Life Sciences invite submissions for the Thirteenth Annual Health Law Symposium on Health
Law and Policy on the theme “Addressing the Health Care Needs of
Justice-Involved Populations,” to be held on November 15, 2019. The deadline
for abstracts is June 15.
The University
of New South Wales Law offers
a number of positions ranging from a Post-Doctoral Fellow to Associate
Professors. The deadline for applications is May 2, 2019.
The
Melbourne Law School invites
applications for the McKenzie Postdoctoral Fellowships. Expressions of interest
are due by June 15, 2019.
The
Faculty of Law, Economics and Finance of the University of Luxembourg invites
applications for the position of a Doctoral researcher in law with a specialization
in civil procedure.
The Centre
for European Research in Maastricht organizes the CERiM Young Scholars’ Forum and
Conference on May 22-24.
The Kyiv-Mohyla
Law & Politics Journal invites
submissions, including articles, reflections, and book reviews, for its
upcoming 5th issue dedicated to the topic of “Legal and Political Challenges of
Anticorruption Activities.” The deadline for submissions is May 15, 2019.
The
Ankara Bar Association invites
submissions for the XIth International Congress on Law on the theme of “Human
Rights and Rights Advocacy.” The deadline for submission of abstracts is
May 15, 2019.
—Simon Drugda, PhD Candidate at the University of Copenhagen
On
January 30, 2019, the Slovak Constitutional Court declared a constitutional
amendment unconstitutional. The Court held that the Constitution contains an implicit material core that cannot
be changed through the ordinary amendment process. Consequently, if an
amendment violates a core provision, it will be struck down.
This
historic ruling aroused much less controversy than expected. It was
overshadowed by the election of the country’s first female President and the first selection hearings of
constitutional judges broadcast live to the public on television. I will return
to the judgment to examine its several key aspects. But first I will explain
the distinction between direct and indirect constitutional amendments in the
Slovak legal system and then reveal how the invalidated amendment nonetheless
remains law.
—Jill Goldenziel, Marine Corps University-Command and Staff College; Fox Leadership International Affiliated Scholar, University of Pennsylvania. Professor Goldenziel’s views do not represent those of her University or any other arm of the U.S. Government.
[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 2019, see here.]
Freedom of speech and expression and the right to privacy
are two constitutional rights that democracies hold most dear. These freedoms
are entrenched in the constitutions of most democracies around the world. Freedom of speech is especially prized in the
United States, which has some of the least restrictive laws on freedom of
speech in the world. The right to privacy is also especially important in
democracies. In Europe, the right to
privacy has been a hot-button legal issue in the context of the Internet, and a
related “right to be forgotten” has been developing. While the right to privacy
is not explicitly enumerated in the U.S. Constitution, it has developed in
interpretation of many Constitutional amendments, including the Fourth, Fifth,
Ninth, and First. U.S. citizens are fiercely protective of their right to
privacy against government interference of their freedom of speech. The Privacy Act of 1974, enacted while
Americans recoiled from Watergate and the Soviet government’s efforts to
surveil Soviet citizens, places significant restrictions on the U.S.
Government’s ability to collect data related to the First Amendment activities
of U.S. persons.
As detailed in my new article, “The New Fighting Words: How U.S. Law Hampers the Fight Against Information Warfare,” (with Manal Cheema), enemy states are now weaponizing these prized freedoms against democracies. Russia’s information warfare campaigns against Estonia, the Ukraine, and the U.S., for example, have been well publicized. According to the U.S. Department of Justice, foreign-influenced operations like Russia’s include covert actions intended to “sow division in our society, undermine confidence in democratic institutions, and otherwise affect political sentiment and public discourse to achieve strategic geopolitical objectives.”[1] Well before the 2016 U.S. Presidential election, Russia was using online sources disguised as news outlets to produce and distribute fake news, targeting key voter groups. Russia’s sophisticated information warfare campaign against the integrity of the U.S. electoral process continues as it seeks to influence the 2020 presidential election.
—Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin
In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about her research.
This edition of “Five Questions” features a short video interview with Lech Garlicki, former judge on the Constitutional Court of Poland (1993-2001) and on the European Court of Human Rights (2002-12), and currently a Visiting Professor of Law at the Washington University in St. Louis.
Asked to identify his favorite English-language publication among his entire body of work thus far, Garlicki chose “Constitutional Courts Versus Supreme Courts,” available for download here.
To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.
—Chiara Graziani, Ph.D. Candidate and Research Fellow in
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
The European Court
of Justice heard a case against the discriminatory
labelling of Israeli products.
The European Court of Human Rights found that Ukraine violated the fair trial principle, due to domestic courts’
approach to evidence in a criminal case.
The Supreme Court of India issued an interim order for
political parties to disclose details on funding raised through electoral bonds.
The International Criminal Court rejected the request to
investigate alleged crimes against humanity and war crimes in Afghanistan.
The Supreme Court of Jamaica ruled that the National Identification and
Registration Act is unconstitutional because it violated the right to privacy.
The Supreme Court of Myanmar heard the appeal of two journalists who have been
jailed for violating a colonial-era official secret law.
The Constitutional Court of South Korea ruled that national legislation banning
abortion is unconstitutional.
The German Federal
Constitutional Court held that statutory exclusion from voting
rights of persons placed under full guardianship and of offenders confined in a
psychiatric hospital must not apply in the upcoming European elections.
In the News
Lawmakers in the US
introduced a bill to the
House of Representatives that would treat India as a NATO ally for the purposes
of the Arms Export Control Act.
The US Court of Appeals for the 9th Circuit blocked a lower court
judgment that stopped the Trump administration from forcing asylum seekers to
wait in Mexico while their cases move through US courts.
Advocate General Tanchev delivered his opinion to the
European Court of Justice in which he argued that the Polish government had violated
its obligation to guarantee the independence of the Supreme Court.
Several Jewish organizations called on the US Congress
to pass a bill ending President Trump’s travel ban.
A Sudanese General stepped down as
transitional leader after President al-Bashir’s ouster.
The Parliamentary Assembly of the Council of Europe urged action against money laundering.
The UK Counter-Terrorism and Border Security Act 2019 came into force, two months after Royal Assent.
A UK judge ordered Ukip to disclose details
on how it used £300,000 of political data services in the run-up to the 2016
Brexit vote and the 2015 General Election.
Justice Gascon will retire from the Supreme Court of Canda.
The Parliament of Egypt approved constitutional amendments
that will lengthen President Abdul Abdul Fattah al-Sisi his current term of office
to six years, allow him to stand one more time, and grant increased powers.
An Israeli Court upheld the deportation of
Human Rights Watch’s local director.
Jannemieke Ouwerkerk, Judit Altena, Jacob Öberg and Samuli Miettinen
(eds.), The Future of EU Criminal Justice Policy and
Practice (2019) (exploring challenges of EU criminal law from a
multidisciplinary perspective)
Mathias Reimann, Reinhard Zimmermann (eds.), The Oxford Handbook of
Comparative Law (2019) (providing an overview of the current state of comparative legal
scholarship, analyzing its methodology, and setting an agenda for future research)
Susan Willis
McFadden, German Citizenship Law and the Turkish Diaspora, 20(1) German Law Journal (2019) (exploring the historical foundation
of Turkish migration to Germany and the evolution of legislation dealing with
the matter)
Adrienne Yong, The Rise and Decline of Fundamental Rights in EU Citizenship (2019) (arguing that the relationship between EU fundamental rights
and EU citizenship has weakened in recent years due to increasing
Euroscepticism and dissatisfaction with the EU project)
Call for Papers and Announcements
The Minerva Center for Human Rights at the Hebrew University of
Jerusalem and Tel-Aviv University invites applications for a
Postdoctoral Fellowship in Transitional Justice. The deadline to submit
applications is April 28, 2019.
The European Law Institute calls for submissions for the 2019 ELI Young
Lawyers Award. Papers must be submitted by April 30, 2019.
The European Yearbook of Constitutional Law invites submissions for
its 2020 issue on “The City in Constitutional Law.” The deadline to submit
proposals is April 30, 2019.
The Centre for Human Rights of the University of Pretoria issued a call for
abstracts for the “International Conference on the protection of forced
migrants in Africa.” The deadline for submission of abstracts is April 30,
2019.
Di Tella Law School (Buenos Aires) invites submissions for a conference
“Dialogues on International Law.” The deadline for submission of abstracts is May
1, 2019.
The International Nuremberg Principles Academy organizes a conference on “Synergies between International Criminal Law and UN
Agenda 2030,” to be held in Nuremberg on May 3-4, 2019.
The Italian law Journal DPCE
online seeks five student executive editors. The
deadline for applications is May 15, 2019.
The British Institute for International and Comparative Law organizes its Annual Harry
Weinrebe Memorial Lecture on the theme “Do Human Rights Need Rescuing?” The
lecture will take place in London, on
May 22, 2019.
The Koç University UNESCO Chair on Gender Equality and Sustainable
Development organizes a summer academy
on “Women’s Empowerment for Sustainable Development.” Applications for
scholarships are to be sent by May 31, 2019. Regular applications are open
until July 14, 2019.
The Faculty of Law of the University of Hamburg invites submissions for
the 3rd Hamburg Young Scholars’ Workshop in International Law. Abstracts and
CVs are to be sent by May 31, 2019.
The South Asian University of New Dheli calls for abstracts for the Conference on
“South Asia in the Era of International Courts and Tribunals.” Interested
scholars can send their abstracts and CVs by June 30, 2019.
The Melbourne Journal of International Law invites submissions for its volume 20(2). Submissions must be sent by July 1,
2019.
The Institute for Comparative Federalism of Eurac Research in Italy offers interested scholars
an opportunity for a short-term research stay. The deadline for applications is
July 1, 2019.
The Société de législation
comparée organizes a comparative law
essays competition. Submissions must be sent no later than October 15, 2019.
Within the first twenty-four hours after
the Israeli election, the future political partners of PM Netanyahu raised the demand
to enact a general override clause as part of the Basic Laws. They believe that
this override clause will empower them to govern without the intervention of
the High Court of Justice. The Ultra-Orthodox parties hope to use the override
to enact a statute that will exempt Ultra-Orthodox men from the mandatory army
service. PM Netanyahu believes that the override may immunize him from criminal
prosecution while in power. The enactment of a general override power will
authorize the Israeli legislature (Knesset) to enact a statute stating explicitly
that it is valid despite its infringement of constitutional rights and values.
With such a declaration, the legislature will take public responsibility for
its actions and at the same time immunize the statute from invalidation by the
courts. A somewhat similar override clause exists in the Canadian Charter. No
less than the authority to have the “last word” on the protection of
constitutional rights and values is at stake. Will it be accorded to the
Israeli courts or to the legislature? The political discussion is conducted as
though all the issues are open to bargaining, from the very authority to override
to the design of the override clause.
Granting the Israeli legislature a general override power is consistent with the constitutional history of the State of Israel prior to the constitutional revolution. During the founding era (1948-1992), the Knesset consistently overrode section 4 of Basic Law: The Knesset, which guarantees equal elections, and requires 61 Members of Knesset (MKs) to amend it. When the Court invalidated a law for violating section 4 of the Basic Law, the Knesset often re-enacted the law by a majority of 61 MKs, declaring that “to remove any doubt” the law is retroactively effective from the date of its original enactment. The Knesset paid “lip service” to judicial review power during this period, and the Court, including Justice Barak, approved the legitimacy of this practice.[1]
We welcome substantive submissions via email on any subject of comparative public law. Submissions usually, though not always, range from 750 to 1000 words. All submissions will be reviewed in a timely fashion.
Please send submissions to contact.iconnect@gmail.com.
