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Blog of the International Journal of Constitutional Law

Conference Report–Separation of Powers within and beyond Europe: The Evolution of a Foundational Concept

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.

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Published on May 7, 2019
Author:          Filed under: Developments
 

What’s New in Public Law

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

  1. 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.
  2. The CJEU ruled for Airbnb in a case challenging French real estate laws.
  3. The Constitutional Court of South Korea held the criminal ban on abortion at the early stages of pregnancy unconstitutional.
  4. 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.
  5. 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.
  6. The Constitutional Court of Italy ruled that serious mental illness is a ground to spare prison and grant house arrest.

In the News

  1. The Supreme Court of Kansas upheld an injunction against a state bill banning dilation and evacuation abortions in Kansas.
  2. The Spanish board of elections blocked Puigdemont standing as a MEP in next EU Parliament elections.
  3. Conservatives and Labour suffer heavy losses in UK local elections, while parties opposing Brexit gain seats.
  4. The Upper House of the Parliament of Mexico failed to approve the President’s bill overturning education overhaul by former President Nieto.
  5. The Constitutional Review Commission of Gambia engaged in external consultations with Gambians living in the diaspora to draft the new Constitution.
  6. The Turkish High Election Board ordered an investigation into allegations of irregularities into the local election in Istanbul, won by the main opposition party.
  7. In Colombia, the prosecutor general launched an investigation into the espionage of Constitutional Court’s magistrates.
  8. The first Maori judge and expert on indigenous rights joined the Supreme Court of New Zealand.

New Scholarship

  1. Richard Albert, The Case for Presidential Illegality in Constitutional Amendment (forthcoming 2019) (arguing that a president could in some cases defy a constitution’s amendment procedure if the breach is validated by the people)
  2. 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)
  3. 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)
  4. 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)
  5. 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)
  6. 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)
  7. 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)
  8. 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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.

Elsewhere Online

  1. David R. Cameron, Vox does well but Sánchez and Socialists are the winners in Spanish election, Yale MacMillan Center
  2. Jessica Lasky, The “Occupy Central 9” Cases: Rule of Law or Rule by Law in Hong Kong?, JURIST
  3. Kwame Anthony Appiah, What happens when Democracy becomes Tribal?, ResetDOC
  4. Soulef Guessoum, Algeria: A Constitutional versus a Political Solution, ConstitutionNet
  5. Adam Daly, Solicitors want a Yes vote in divorce referendum (Ireland), The Journal.ie
  6. Is Orange the New Black? New Far-Right in the Netherlands (dossier), ResetDOC
  7. William W. Buzbee, What the Census Case Will Say About the Supreme Court, The New York Times
  8. Gabrielle Holly, Australia as a jurisdiction for transnational human rights litigation: Kamasaee v Commonwealth, Cambridge Core Blog
  9. Antonio Aloisi, Valerio De Stefano and Six Silberman, A manifesto to reform the Gig Economy, Regulating for Globalization
  10. Steve Peers, ‘We *aren’t* the world’: the CJEU reconciles EU law with international (investment) law, EU Law Analysis
  11. Yulia Ioffe, Termination of the Treaty of Friendship between Ukraine and Russia – Too Little Too Late?, OpinioJuris
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Published on May 6, 2019
Author:          Filed under: Developments
 

Save the Date–2019 I-CONnect Happy Hour at ICON-S in Santiago–Sunday, June 30, 6:30pm to 8:30pm at Quitral

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!

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Published on May 3, 2019
Author:          Filed under: Developments
 

Constitutional Design and Post-Soviet Presidential Succession: The Kazakh Model?

William Partlett, Melbourne Law School

[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.  

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Published on May 1, 2019
Author:          Filed under: Developments
 

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 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.
  2. The Supreme Court of Uganda upheld a 2018 judgment that affirmed the constitutionality of the removal of term limits on the presidency.
  3. The Supreme Court of Afghanistan extended the term of the sitting President until the delayed election takes place.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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

  1. 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.
  2. 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.
  3. The President of Guinea is planning to organize a referendum to remove the presidential term limits.
  4. 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.
  5. 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.
  6. The President of Mali announced that national consultations on constitutional reform will take place at the end of April.
  7. The Parliament of Barbados passed a constitutional amendment to eliminate mandatory death penalty sentences.

New Scholarship

  1. 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.
  2. Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality (2019) (arguing that the law and lawyers selectively “code” certain assets, endowing them with the capacity to protect and produce private wealth)
  3. Kate Puddister, Seeking the Court’s Advice. The Politics of the Canadian Reference Power (2019) (presenting an in-depth study of the reference power in Canada, based on a comprehensive data set of over two hundred reference cases from 1875 to 2017)
  4. Tarunabh Khaitan, Killing A Constitution With a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India (2019) (arguing that executive accountability mechanisms and democratic norms have been weakened in India, enhancing political dominance of the ruling party)
  5. 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)
  6. 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)
  7. Guobin Zhu and Antonios E. Kouroutakis, The Role of the Judiciary and the Supreme Court in the Constitution-Making Process: The Case of Nepal, 55(1) Stanford Journal of International Law (2019) (examining the role of the judiciary in Nepal after the adoption of the new Constitution)
  8. 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”)
  9. 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)
  10. 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)
  11. 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)
  12. Jaclyn L. Neo, Arif A. Jamal, and Daniel P. S. Goh (eds.), Regulating Religion in Asia: Norms, Modes, and Challenges (2019) (examining how law regulates religion, and how religion responds to such regulation)
  13. 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)
  14. Peter Karanjia, Hard Cases and Tough Choices: A Response to Professors Sunstein and Vermeule 132(5) Harvard Law Review (2019) (trying to negotiate the tension between administrative agencies’ adherence to Fullerian principles and other values including promoting agency flexibility)

Call for Papers and Announcements

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. The Melbourne Law School invites applications for the McKenzie Postdoctoral Fellowships. Expressions of interest are due by June 15, 2019.
  6. 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.
  7. The Centre for European Research in Maastricht organizes the CERiM Young Scholars’ Forum and Conference on May 22-24.
  8. 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.
  9. 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.

Elsewhere Online

  1. Richard Albert, Jason Kenney’s referendum threat is a bold attempt to revive Confederation, The Globe and Mail
  2. Suhrith Parthasarthy, An illustrative case, The Hindu
  3. Peter Penar and Carolyn Logan, Pendulum is swinging towards creeping restrictions across Africa, The Conversation
  4. Laura Green and David Hamer, Corporate Responsibility for Human Rights Violations: UK Supreme Court Allows Zambian Communities to Pursue Civil Suit Against UK Domiciled Parent Company, EJIL: Talk!
  5. Martin Wolf, The age of the elected despot is here, Financial Times
  6. Radosveta Vassileva, Is Bulgaria’s Rule of Law about to Die under the European Commission’s Nose? The Country’s Highest-Ranking Judge Fears So, Verfassungsblog
  7. David R. Cameron, Ukraine elects a comedian president, Yale MacMillan Centre
  8. Gautam Bhatia, Notes from a Foreign Field: The Namibian Supreme Court on Free Speech, National Security, and Injunctions, Indian Constitutional Law and Philosophy
  9. Adam Liptak, On Census Citizenship Question, Supreme Court’s Conservatives Appear United, The New York Times
  10. Jan-Werner Müller, Is This Really How it Ends?, The Nation
  11. Or Bassok, Frankfurter’s Conception of Judicial Legitimacy – and Ours, Balkinization
  12. H. Kwasi Prempeh, Ghana Looks to Democratize its Local Government, ConstitutionNet
  13. Lasse Schuldt, A Ministry of Truth in Singapore? Reflections on the Anti-Fake News Bill, Verfassungsblog
  14. Jack Simson Caird, Brexit and the Politics of Law-Making, Verfassungsblog
  15. Tomasz Tadeusz Koncewicz, 22 Years of Polish Constitution: Of Lessons not Learnt, Opportunities Missed, and Challenges still to be Met, Verfassungsblog
  16. John Ip, Suspicionless Stop and Search Powers at the Border and Article 8: Beghal v United Kingdom, Strasbourg Observers
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Published on April 29, 2019
Author:          Filed under: Developments
 

Slovak Constitutional Court Strikes Down a Constitutional Amendment—But the Amendment Remains Valid

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.

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Published on April 25, 2019
Author:          Filed under: Analysis
 

How Information Warfare Challenges Liberal Democracies

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.

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Published on April 24, 2019
Author:          Filed under: Analysis
 

Five Questions with Judge Lech Garlicki

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.

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

What’s New in Public Law

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

  1. The European Court of Justice heard a case against the discriminatory labelling of Israeli products.
  2. 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.
  3. The Supreme Court of India issued an interim order for political parties to disclose details on funding raised through electoral bonds.
  4. The International Criminal Court rejected the request to investigate alleged crimes against humanity and war crimes in Afghanistan.
  5. The Supreme Court of Jamaica ruled that the National Identification and Registration Act is unconstitutional because it violated the right to privacy.
  6. The Supreme Court of Myanmar heard the appeal of two journalists who have been jailed for violating a colonial-era official secret law.
  7. The Constitutional Court of South Korea ruled that national legislation banning abortion is unconstitutional.
  8. 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

  1. 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.
  2. 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.
  3. 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.
  4. Several Jewish organizations called on the US Congress to pass a bill ending President Trump’s travel ban.
  5. A Sudanese General stepped down as transitional leader after President al-Bashir’s ouster.
  6. The Parliamentary Assembly of the Council of Europe urged action against money laundering.
  7. The UK Counter-Terrorism and Border Security Act 2019 came into force, two months after Royal Assent.
  8. 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.
  9. Justice Gascon will retire from the Supreme Court of Canda.
  10. 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.
  11. An Israeli Court upheld the deportation of Human Rights Watch’s local director.

New Scholarship

  1. Tom G. Daly and Brian C. Jones, Parties versus Democracy: Addressing Today’s Political Party Threats to Democratic Rule, International Journal of Constitutional Law (forthcoming 2019) (arguing that contemporary political-party threats frustrate the possibility of remedial action afforded by existing public law and policy mechanisms)
  2. Tom G. Daly, Populism, Public Law and Democratic Decay in Brazil: Understanding the Rise of Jair Bolsonaro (2019) (analyses the diffuse decay of Brazil’s democratic system up to the holding of the 2018presidential elections and the rise of Jair Bolsonaro)
  3. Sofia Galani, Terrorist Hostage-taking and Human Rights: Protecting Victims of Terrorism under the European Convention on Human Rights, 19(1) Human Rights Law Review (2019) (examining the positive and procedural obligations of states towards victims as outlined by the European Court of Human Rights in its Tagayeva v. Russia decision and assessing how this case might shape future responses to terrorist attacks)
  4. Ester Herlin-Karnell, The Constitutional Structure of Europe’s Area of ‘Freedom, Security and Justice’ and the Right to Justification (forthcoming 2019) (examining EU security regulation and its constitutional implications, in light of issues such as the refugee and migration crisis and the terrorist threat)
  5. Anna-Bettina Kaiser, Niels Petersen, Johannes Saurer (eds.), The U.S. Supreme Court and Contemporary Constitutional Law (2019) (analysing the jurisprudence of the US Supreme Court in the Obama era)
  6. 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)
  7. 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)
  8. Arianna Vedaschi, The Dark Side of Counter-Terrorism: Arcana Imperii and Salus Rei Publicae, 66(4) American Journal of Comparative Law (2019) (examining the use of state secrecy by advanced democracies in counter-terrorism operations and arguing a judicial review of secrecy claims)
  9. Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (2019) (exploring the challenges arising from the application of the European Convention on Human Rights to military operations and providing guidance on how to interpret the Convention in such cases)
  10. 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)
  11. 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

  1. 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.
  2. The European Law Institute calls for submissions for the 2019 ELI Young Lawyers Award. Papers must be submitted by April 30, 2019.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. The Italian law Journal DPCE online seeks five student executive editors. The deadline for applications is May 15, 2019.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. The Melbourne Journal of International Law invites submissions for its volume 20(2). Submissions must be sent by July 1, 2019.
  13. 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.
  14. The Société de législation comparée organizes a comparative law essays competition. Submissions must be sent no later than October 15, 2019.

Elsewhere Online

  1. David Beamish, Reducing the Size of the House of Lords: Two Steps Forward, Two Steps Back, The Constitution Unit
  2. Iryna Bogdanova, The WTO Panel Ruling on the National Security Exception: Has the Panel ‘Cut’ the Baby in Half?, EJIL: Talk!
  3. Patryk I. Labuda, A Neo-Colonial Court for Weak States? Not Quite. Making Sense of the International Criminal Court’s Afghanistan Decision, EJIL: Talk!
  4. Piotr Bogdanowicz, Three Steps Ahead, One Step Aside: The AG’s Opinion in the Commission v. Poland Case, Verfassungsblog
  5. Martin Kwan, When Does a Person Have an Intellectual Disability? The Insights of the US Supreme Court, OxHRH Blog
  6. Herb Lin, Principles of AI Governance and Ethics Should Apply to All Technologies, Lawfare
  7. Menelaos Markakis, A Trojan Horse in the EU? The Curious Case of EU27+1, UK Constitutional Law Association Blog
  8. Progressive Lawyers Group, Hong Kong Rule of Law Report 2018, Hong Kong Free Press
  9. Wojciech Sadurski, So, It’s the End of Liberal Democracy? Think Again, Euronews
  10. Raphael Schäpher, Practice as Method. Germany Rehabilitation in and through International Law, The Völkerrechtsblog
  11. Francesca Strumia, Unemployment, Residence Rights, Social Benefits at Three Crossroads in the Tarola Ruling, EU Law Analysis
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Published on April 22, 2019
Author:          Filed under: Developments
 

Inherent Limits on the Override Power after the Israeli Election

Rivka Weill, Harry Radzyner Law School, IDC

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]

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Published on April 18, 2019
Author:          Filed under: Analysis