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Blog of the International Journal of Constitutional Law

What’s New in Public Law


Robert Rybski, Assistant Professor at the Faculty of Law and Administration of the University of Warsaw, Rector’s Plenipotentiary for Environment and Sustainable Development.


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere. To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. German Federal Constitutional Court backed retroactive application of the law was justified because of the outstanding importance of the matter backing the seizure of 176 million euros from the bank for its involvement in Cum-Ex trades.
  2. Germany on Friday brought a case against Italy before the International Court of Justice on the grounds that after the 2014 judgment of the Italian Constitutional Court that permitted “individual claims by victims of war crimes and crimes against humanity to be brought against sovereign states”, Italy is continuing to claim World War II compensation, thereby “failing to respect its jurisdictional immunity”.
  3. Italy’s Constitutional Court ruled that children should not automatically be given their father’s surname.
  4. In a 4-3 ruling New York’s highest court ruled that new congressional district maps violate the state constitution’s prohibition against partisan gerrymandering and should be tossed out before the 2022 election.
  5. A selection committee unanimously ruled that Worawit Kangsasitiam, president of the Constitutional Court of Thailand, will leave the post after serving nine years or reaching 75, whichever comes first.

In the News

  1. Germany summoned Turkey’s ambassador to protest a sentence of life in prison that a Turkish court handed to a prominent Turkish civil rights activist Osman Kavala.
  2. Turkey’s President Tayyip Erdogan claimed that a ruling by the European Court of Human Rights for the release of Osman Kavala no longer applied after he was jailed for life this week over anti-government protests held in 2013.
  3. Kazakhstan’s President calls for a referendum to vote on his proposed amendments to Kazakhstan’s Constitution.
  4. Peruvian President presented a constitutional reform bill that allows the formation of a Constitutional Assembly and holding a referendum to consult the public about whether the Constitutional Assembly should be tasked with preparing a new Constitution.
  5. Tunisian President Kais Saied announced that the government will form a committee to write a constitution for a “New Republic” in Tunisia.

New Scholarship

  1. Barbara Grabowska-Moroz, How was the “rule of law” dismantled in Poland and what does it mean for the EU? The decision of the Polish Constitutional Tribunal of 7 October 2021 (K 3/21) – the European game changer or a quasi-judicial bluff?,  Unión Europea y el reto del Estado de Derecho (edited by Susana Sanz Caballero), Thomson Reuters Aranzadi 2022, pp. 277-294 (analyses how the rule of law backsliding in Poland led to the decision of the Polish CT of 7 October 2021, K 3/21, and its consequences).
  2. Rita Abhavan Ngwoke, Sogunle B. Abayomi, An Appraisal of the Power of Pardon under Nigerian Law: Lessons from Other Jurisdictions, Beijing Law Review vol.13 No.2 (2022) (discusses the exercise of the presidential pardon power under the Nigerian Constitution).
  3. Nicholas Aroney, Christianity and Constitutional Law, Forthcoming, John Witte and Rafael Domingo (eds), Oxford Handbook on Christianity and Law, Oxford University Press, 2022 (explores the influence of Christianity on constitutional law throughout the history)
  4. Joshua Llyod, Fair Construction to Living Constitution: Analyzing Constitutional Interpretation Throughout United States History, Senior Honors Theses item 1183 (2022) (examines a proper method of constitutional interpretation throughout the history of the U.S. Supreme Court)
  5. Ravikiran Shukre, Establishment of Green Tribunal in India: Ideology and Nexus with the Constitution of India, Supremo Amicus vol. 28 (2022) (analyzes the performance of the Green Tribunal in India)

Calls for Papers and Announcements

  1. The University of Sydney invites applications for Julius Stone Postdoctoral Fellow in Jurisprudence from both legal theory/jurisprudence specialists and public law theorists.
  2. IUS Publicum Network Review calls for papers under the title „Effective law, multilevel government and the pandemic test”. Contributions should be no longer than 80.000 characters and can be submitted by sending an email to coordination.iuspublicum@gmail.com.  
  3. The International Association of Constitutional Law calls for papers for its roundtable in Cordoba, Argentina that will focus on “Political sentiments and moral emotions in Constitutional Law”. Interested parties should submit their CV (no longer than one page) in English, French, or Spanish, along with an abstract of their paper (no longer than 500 words) by May 30, 2022 via email to: iacl.aidc.cordoba.rt@gmail.com.
  4. IUS Publicum Network Review calls for contributions to their special issue, “Closing the circle: the role of public law implementing circular economy”. Proposals should be submitted via email to coordination.iuspublicum@gmail.com.
  5. Faculty of Law of Radboud University calls for papers for the 6th Radboud Economic Law Conference: ‘Services of General (Economic) Interest: State of Play and Current Challenges’, which will take place on 7 October 2022 at the Faculty of Law of Radboud University Nijmegen. Abstracts should be submitted by 10 July 2022.
  6. IUS Publicum Network Review invites short proposals for papers to be included in a special issue on Smart Cities: „New Challenges and new solutions: the dawn of smart cities law”. Submissions should contain a title and abstract no longer than 500 words. Proposals should be sent by October, 31st 2022 to coordination.iuspublicum@gmail.com.

Elsewhere Online

  1. Anna Wójcik, Keeping the Past and the Present Apart. The CJEU, the Rule of Law Crisis, and Decommunization, Verfassungsblog
  2. Dragoș Călin, Case C-205/22, C.D.A. Direct application by the national courts of the European Commission reports issued under the Cooperation and Verification Mechanism, Official Blog UNIO
  3. Radosveta Vassileva, Bulgaria’s Failed Specialized Criminal Justice Experiment, Verfassungsblog
  4. Diego Werneck Arguelhes, Public Opinion, Criminal Procedures, and Legislative Shields: How Supreme Court Judges Have Checked President Jair Bolsonaro in Brazil, Georgetown Journal of International Affairs    
  5. Alberto Alemanno, The Court of Justice of the EU goes (almost) public, Verfassungsblog
  6. Jonatan Mitchel Sisco Martinez, Unconstitutional Eradication of Presidential Term Limits: The Case of El Salvador, IACL-Blog
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Published on May 2, 2022
Author:          Filed under: Developments
 

Comparative Constitutional Law Theory Today Depends Upon Back-Translators

Bryan Dennis G. Tiojanco, Project Associate Professor, University of Tokyo, Graduate Schools for Law and Politics. Twitter: @botiojanco

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

‘How to Save a Constitutional Democracy’, the title of Tom Ginsburg and Aziz Huq’s 2018 book, perfectly captures the gist of comparative constitutional law theory’s present preoccupation. Since 2016 the field has churned book after book and essay after essay on this question. The focus is fueled by a sense that constitutional democracies (or at least constitutional rights) across the world are tottering, and that theory might somehow buttress them.[1] It is a worthy endeavor, but it also makes the field dependent upon back-translators.

As I said in my previous column, comparative constitutional law scholarship redescribes local legal practices in terms that are different from what practitioners would routinely use to describe them. We may call these re-descriptive terms experience-distant concepts, as opposed to the experience-near concepts which form part of every legal practitioner’s professional vocabulary.[2] A Philippine Supreme Court Justice will, for example, consider a controversy before her as involving a political question or the issue of legal standing, ripeness, mootness, etc.,[3] but she will rarely say that it presents a countermajoritarian difficulty.[4] She might agree with Alexander Bickel on this point, of course, but she would write her decision in terms of the legal doctrines, rules, and principles of Philippine law.[5]

Experience-distant concepts allow comparative constitutional law theorists to place different constitutional systems side by side so that they may each illuminate the others. Take David Landau’s essay, Courts and support structures: beyond the classic narrative, for example.[6] Landau’s thesis is that courts could and do take measures which can strengthen or even construct external support structures, viz., groups (domestic civil society groups, political parties, other courts, international NGOs, etc.) that help carry out judicial projects of social change. One such measure is the appointment of ‘Commissioners’ or a ‘Monitoring Commission’ which give civil society groups a prominent role in following up on a judgment; in Colombia and India the civil society groups constructed and strengthened by this structural remedy later succeeded in pushing for the passage of related reform legislation.[7] Here the term ‘external support structures’ and ‘measures’ are experience-distant concepts, ‘Monitoring Commission’ and Supreme Court ‘Commissioners’ are experience-near ones. To illustrate his thesis, Landau narrates how in two countries the peak court’s appointment of either Commissioners or a Monitoring Commission constructed and strengthened external support structures. The terms ‘external support structure’ and ‘measures’ allow Landau to compare the effects of analogous structural remedies on similar groups in different countries. Another way to put it is that these terms translate Colombian and Indian legalese into comparative constitutional law academese.

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Published on April 29, 2022
Author:          Filed under: Analysis
 

“Look Who’s Talking!” The Strange Story of Disownment in Taiwan’s New Experiment on Constitutional Review


Ming-Sung Kuo, Associate Professor of Law, University of Warwick & Hui-Wen Chen, Research Assistant, University of Warwick


Introduction: Opinions of the Court Disowned

Taiwan’s Constitutional Review 3.0 has seen its first 100 days since the Constitutional Court Procedure Act (CCPA) came into effect on January 4, 2022.  Although judicial time does not fly, the Taiwan Constitutional Court (TCC) has wasted no time in making the CCPA’s impact fresh and real.  As of April 28, the TCC issued four Judgements and two merits-related Orders as well as over 180 Orders on admissibility and other procedural matters under the new CCPA.  Yet, from out of the four Judgements a big story has emerged about the identity and authenticity of constitutional review: in whose name does the TCC speak as the constitution’s oracle?  It is a strange story about the TCC’s Judgments Nos. 3 and 4.

Judgment No. 3, rendered on March 25, concerned a technical procedural rule on the criminal court proceedings, whereas Judgment No. 4, delivered a week later, addressed an issue concerning indigenous rights.  Despite difference in constitutional significance, they share one character: the (nominally) authoring Justices of the opinions of the court (Reasoning) in these two Judgments issued concurring opinions.  In a word, the opinions of the court for the TCC’s Judgments Nos. 3 and 4 were disowned by their authors.  When the authoring Justices identify themselves with their concurring opinions instead of the opinions of the court, then who is talking in the Reasoning?  Does this story of disownment suggest the inauthenticity of the TCC’s Reasoning?  What does this tell us about Taiwan’s Constitutional Review 3.0? 

To make sense of the strange story of disownment in Taiwan’s new experiment on constitutional review, we suggest that at its core is a tragic exhibition of the reform suffering from the discrepancy between the law on the books and the old institutional habits that die hard.  The CCPA’s good will is the beginning of the story.      

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Published on April 28, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Maja Sahadžić, Visiting Professor and Research Fellow (University of Antwerp) and Senior Research Fellow (Law Institute in Sarajevo)


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

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

Developments in Constitutional Courts

  1. The Supreme Court of the US ruled that Puerto Ricans do not have the same access to the welfare program.
  2. The Supreme Court of South Korea overturned the military convictions of two gay soldiers.
  3. The Supreme Court of India ruled that failure to provide an airbag system should be subject to punitive damages.
  4. The Supreme Court of India ordered twice a halt to the demolition of houses and shops in the Jahangirpuri area.
  5. The Constitutional Court of Taiwan declared unconstitutional a legal provision on Indigenous status.
  6. The Constitutional Court of Turkey ruled that compulsory religion courses violate the European Convention on Human Rights.

In the News

  1. Congresswomen in Peru issued a constitutional complaint against three judges of the Constitutional Court.
  2. The Lithuanian parliament amended the Constitution to allow direct mayoral elections.
  3. The Lithuanian parliament passed amendments to prohibit symbols associated with Russian aggression in Ukraine.
  4. The Brazilian President pardoned his political ally and escalated his feud with the Supreme Court.
  5. Seven Afghan men were flogged in the first such sentence to be handed by the Taliban-run Supreme Court.
  6. International Criminal Court’s chief prosecutor visited Bucha in Ukraine to investigate alleged war crimes in the country.
  7. The Mexican parliament blocked the president’s plan to increase state control over power generation.
  8. The Indonesian parliament passed a landmark bill on sexual violence.

New Scholarship

  1. Sujit Choudhry, Can Federalism Save India’s Constitutional Democracy? 4 Jus Cogens (questioning whether the design of the Indian constitution can be a source of constitutional resilience against the rising threat of authoritarianism and Hindu majoritarianism).
  2. Bridget A. Fahey, Data Federalism 135(4) Harward Law Review (providing an account of vast and rapidly expanding intergovernmental marketplace in individual data by arguing that constitutional doctrines can and should be adapted to police the exchange of data and that data as a form of governmental power has the potential to unsettle federalism in both function and theory).
  3. Tony George Puthucherril, Water Federalism, Tribunalization of Water Justice and Hydro-Politics: India’s Inter-State River Water Disputes Act at 65 Years 35(1) Columbia Journal of Asian Law (examining water federalism in India by questioning whether water should be transferred from the State List to the Concurrent List and whether India should persist with the tribunal system or replace it with the judicial process at the Supreme Court level).
  4. Aziz Z. Huq, The Supreme Court and the Dynamics of Democratic Backsliding 669(1) The Annals of the American Academy of Political and Social Science (exploring the role of the U.S. Supreme Court in contemporary democratic backsliding through identifying dynamics that have placed American democracy under strain).
  5. Christopher J. Williams and Gregory Shufeldt, How identity influences public attitudes towards the US federal government: lessons from the European Union 57 Acta Politica (exploring why Americans have a positive or negative effect on the US federal government by drawing on existing theoretical and empirical research regarding individual attitudes towards the European Union, examining the effect of ethnocentrism on American attitudes towards the federal government).
  6. Julian Scholtes, Abusing Constitutional Identity 22(4) German Law Journal (arguing that the anti-pluralist critiques of constitutional identity, while rightly criticizing the authoritarian appropriations of constitutional identity, ultimately go too far and draw the wrong conclusions).
  7. Gabriella Citroni, Irene Spigno, Palmina Tanzarella (eds.) The Right to Political Participation: A Study of the Judgments of the European and Inter-American Courts of Human Rights (2022) (offering a comparative analysis of how judgments from the European Court of Human Rights and the Inter-American Court of Human Rights affect political participation and electoral justice at the national level).

Calls for Papers and Announcements

  1. The IUCN World Commission on Environmental Law and the Faculty of Law of the University of Oslo host the Oslo Environmental Law Conference „The Transformative Power of Law: Addressing Global Environmental Challenges“ to be held in Oslo on 3-6 October 2022. The deadline for submitting abstracts is 30 April 2022.
  2. The Netherlands Academy for Empirical Legal Studies organizes an International Empirical Legal Studies Conference to be held in Amsterdam on 1-2 September 2022. The deadline for submitting abstracts is 1 May 2022.
  3. The Amsterdam Centre for European Studies organizes a „Conference on enabling sustainable mobility practices in Europe“ to be held in Amsterdam on 27-28 October 2022. The deadline for submitting abstracts is 1 May 2022.
  4. The Society of Legal Scholars and the Centre for Innovation and Research in Legal Education of the University of Leeds organize the hybrid international conference „Academic Integrity in the Law School: Past Experiences, Current Challenges, and Future Perspectives“ to be held in Leeds and Online on 17 June 2022. Registration in advance is required.
  5. The University of Minnesota Law School invites abstracts for the Cybersecurity Law and Policy Scholars Conference to be held in Minnesota on 23-24 September 2022. The deadline for submitting abstracts is 15 May 2022.
  6. The University of Milan calls for abstracts for the workshop „What future for environmental and climate litigation? Exploring the added value of a multidisciplinary approach from international, criminal, and private law perspectives“ to be held in Milan on 16 September 2022. The University of Milan covers travel and accommodation expenses for selected speakers. The selected speakers will also be invited to develop their abstracts into papers that will be proposed for publication in an open-access volume. For further questions please feel free to contact the organizing committee at workshop.milan@unimi.it. The deadline for applications is 16 May 2022.
  7. Católica Law School in Lisbon organizes the Católica Graduate Legal Research Conference 2022 „Multilateral cooperation and transnational legal integration“ to be held in Lisbon on 13-14 October 2022. The deadline for submitting abstracts is 31 May 2022.
  8. PluriCourts and Birmingham Law School host the workshop „The Value(s) of the European Convention on Human Rights“ to be held in Birmingham on 8-9 September 2022. The deadline for submitting abstracts is 3 June 2022.
  9. The Centre for Citizenship, Civil Society, and Rule of Law invites applicants for Ph.D. studentships to start in September 2022. The deadline for applications is 15 May 2022.

Elsewhere Online

  1. Richard Albert, 40 years on, Canada’s Charter of Rights is a beacon to the world, Ottawa Citizen
  2. Neven Andjelic, Bosnia-Herzegovina and Ukraine: On the edge of NATO and the EU, too close to prying neighbours, Centre on Constitutional Change
  3. Alex Schwartz, Estimating semantic change in UK constitutional discourse, Centre on Constitutional Change
  4. Jens Woelk, “Kyiv is under siege and so is democracy!“ Ukraine as a new EU member? The return of politics to EU integration, Eureka!
  5. Valentino Grbavac and Ivan Pepic, Streamlining a tangled web: Towards a truly democratic Bosnia and Herzegovina, Eureka!
  6. Gabriel Tan, Recent developments on declaratory relief in Public Law, UK Constitutional Law Blog
  7. Tetyana Krupiy, The Modern Bill of Rights creates barriers to challenging algorithmic decisions, UK Constitutional Law Blog
  8. Giovanni De Gregorio, Pietro Dunn, and Oreste Pollicino, Shareholder Power as a Constitutionalising Force: Elon Musk’s Bid to Buy Twitter, Verfassungsblog
  9. Witold Zontek, Can Putin Be Tried in Poland?, Verfassungsblog
  10. William Partlett, Russian Crown-Presidentialism, Verfassungsblog
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Published on April 25, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Eman Muhammad Rashwan, Ph.D. Candidate in the European Doctorate in Law & Economics (EDLE), Hamburg University, Germany; Lecturer of Public Law, Cairo University, Egypt


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, articles, and blog posts from around the public law blogosphere.

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

Developments in Constitutional Courts

  1. Former Burkina Faso President Blaise Compaoré was sentenced to life imprisonment in absentia after being convicted of participating in the assassination of his predecessor Thomas Sankara, who was killed along with 12 of his comrades during a coup d ‘état in 1987.
  2. Israel’s High Court of Justice ruled against a petition demanding that the police confiscate money raised for the reestablishment of two illegal outposts demolished by the authorities in the West Bank.
  3. Pakistan’s Supreme Court ruled on April 7 that Prime Minister Imran Khan’s move to dissolve Parliament was unconstitutional and ordered lawmakers to return, a decision that ended with removing him from power on Friday.
  4. On April 7, the Mexican Supreme Court of Justice resolved Constitutional procedures filed to override the Electricity Industry Law amendments published on March 9, 2021, in the Official Gazette of the Federation.
  5. Chile’s constitutional court (TC) has ruled that the presumption of environmental damage from farmed fish escapes is unconstitutional, setting a precedent for the country’s aquaculture sector.

In the News

  1. Pakistani prime minister Imran Khan was removed from office on Sunday after several weeks of political turmoil that culminated in a vote of no confidence from the country’s Parliament.
  2. The Yemeni President Abd Rabbu Mansour Hadi resigned on April 8 a Presidential Council was formed.
  3. In the first round of the French presidential election, President Emmanuel Macron took the top spot with 28% of the vote and Marine Le Pen with 23%. The turnout was the lowest percentage in 20 years, at around 74 percent. The same two candidates also received the most votes five years ago. The second round will take place on April 24.
  4. A mobile court opened on April 12 in Bana Ba Ntumba, Democratic Republic of Congo, to prosecute those allegedly responsible for numerous atrocities committed during an attack on several villages from April to May 2017 in the Dimbelenge territory of Kasai Central.
  5. On Wednesday, Representatives of Libya’s two rival governments began UN-backed talks in Egypt aimed at reaching an agreement on holding national elections

 New Scholarship

  1. Richard Albert and Richard Stacey, The Limits and Legitimacy of Referendums, Oxford University Press (2022) (exploring how referendums manage the tension between liberalism and democracy and whether this device holds promise for reconciling these two commitments)
  2. M. Di Bari, Unconstitutional Constitutional Amendments, DPCE, n. 1 (2022) (examining the Doctrine of the Basic Structure in its most recent development by the High Court of Kenya and comparing this judicial theorization with the Implicit Limitation Doctrine elaborated by the Italian Constitutional Court. This comparison focuses on the concept of constituent power in order to understand whether theories of unamendability of constitutional test – though called with different definition – commonly rest on the necessity to preserve the constitutional identity of a given legal order. The article also discusses the rationale behind the (unwritten) limits, questioning the necessity to adopt eternity clauses in constitutional texts)
  3. Jonas Monast and John Virdin, Pricing Plastics Pollution: Lessons from Three Decades of Climate Policy, Connecticut Law Review (Forthcoming, 2022) (arguing that climate change and plastic pollution share numerous similarities, and these similarities allow policymakers to benefit from the three decades of climate policy experimentation when choosing plastics pollution policy instruments. The article focuses on one key policy instrument in climate policies—pollution pricing—and identifies lessons from carbon pricing that can inform the design of plastics pollution policies)
  4. Carla Nunziato, Protecting Free Speech and Due Process Values on Dominant Social Media Platforms, Hastings L. J. (Forthcoming, 2022) (examining the desirability and constitutionality of recent federal and state legislative initiatives that seek to provide remedies for the alleged viewpoint discrimination against and censorship of conservative voices)
  5. Marco Rizzi and Tamara Tulich, All Bets on the Executive(s)! The Australian Response to COVID-19, in Joelle Grogan and Alice Donald, Routledge Handbook of Law and the COVID-19 Pandemic (Forthcoming 2022) (examining the response of the Australian Federal and State governments to the COVID-19 pandemic. Arguing that while successful in limiting the spread of the virus, the response caused significant challenges from a rule of law perspective)
  6. Frederick Schauer, Statistical Evidence and the Problem of Specification, Episteme, vol. 19 (Forthcoming, 2022) (Examining the issue of specification in statistical evidence in criminal and civil litigation, arguing it undercuts the prominent examples in a long and extensive literature and raises normative issues challenging the legal system’s traditional reluctance to base liability on the conjunction of probabilities)

Calls for Papers and Announcements

  1. The 9th Asian Constitutional Law Forum will be held in hybrid format on May 13-14, 2022. Registration is open for this event, hosted by Institutum Iurisprudentiae, Academia Sinica, Taiwan.
  2. The Asian Law and Society Association (ALSA) invites submissions to its 2022 meeting that will be held on 9-10 December 2022 at the School of Law, Vietnam National University, Hanoi, Vietnam. The theme is “Globalization, Technology, and Uncertainty.”
  3. The programme re:constitution – Exchange and Analysis on Democracy and the Rule of Law in Europe has recently published its Call for Applications for up to 10 Fellowships. The Fellowships address early-career scholars and practitioners of law and neighbouring disciplines to pursue their own topical projects about the current development and challenges to democracy and the rule of law in Europe.
  4. The “Constitutional Democracy and the Rule of Law: Mediterranean Perspectives” conference will be held on 1-2 June 2022 and hosted by the Eastern Mediterranean University, the oldest university of the Turkish Republic of Northern Cyprus. The Conference aims to bring the foremost academicians, researchers and research scholars together to share their knowledge, experiences and research results on different aspects of the Constitutional Democracy and the Rule of Law.
  5. The Network on Transnational Administrative Law calls application to its Postgraduate and Early Career Research Discussions (ECRs) for a workshop on transnational administrative law, to be held on 2nd and 3rd June in Barcelona and online. The deadline for application is May 1.
  6. The University of Lisbon School of Law, Nova School of Law, and the International Association of Legislation (IAL) announce a call for papers to the International Conference on “Multilevel legislative drafting and Legislative Impact Assessment” that will be held in a hybrid format in Lisbon on July 15 2022.
  7. The Department of Law of the University of Turin, in the framework of the UniTo Visiting Professor Program, issues a call for applications for one position in Public comparative law (a.y. 2022-2023, Second Term, 18 hours). The deadline for submission is April 22 2022 (11.00 a.m).

Elsewhere Online

  1. Paul Waldman, Now nothing will stop the Supreme Court from overturning Roe v. Wade, The Washington Post
  2. Richard Albert, 40 years on, Canada’s Charter of Rights is a beacon to the world, Ottawa Citizen
  3. Dr. Riva Kantowitz, Mariska van Beijnum, and Marie-Laure Poiré, Effective Options for Financing Local Peacebuilding, GPPAC
  4. Mariana Velasco-Rivera, Playing the Long Game: Behind Mexico’s Presidential Recall Election, IACL-AIDC BLOG
  5. Jos Meester and Guido Lanfranchi, A clash of nationalisms and the remaking of the Ethiopian State, Clingendae
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Published on April 19, 2022
Author:          Filed under: Developments
 

Playing the Long Game: Behind Mexico’s Presidential Recall Election

Mariana Velasco-Rivera, National University of Ireland Maynooth, School of Law and Criminology; Co-Editor, IACL Blog. Twitter: @marisconsin.

[Editor’s Note: This is one of our biweekly ICONnect columns. For more information on our 2022 columnists, see here.]

In my last column I tried to bring attention to the way in which Mexico’s ruling party (MORENA) hijacked the presidential recall election process, acting against both the constitution and a Supreme Court decision that held that the active participation (e.g., signature gathering, promoting and advertising) of political parties in these processes is unconstitutional. In so doing, I pointed out that these violations were unlikely to be subject to judicial scrutiny because the Mexican Congress did not include a clear path to challenge them when adopting the statute that regulates recall processes (Ley Federal de Revocación de Mandato – LFRM).

Importantly, I argued that the time and energy put into the efforts to hold the recall election, despite the high approval rate of President López Obrador, suggested that the endgame wasn’t the recall election but the local elections to be held in the following months, whereby six governorships are up for grabs. Being able to actively promote the recall process, in my view, has served as a useful campaign tool to increase the ruling party’s candidates’ visibility. Judging from recent developments, however, it turns out that the endgame might not only be the immediate upcoming elections but a broader attempt to undermine important pillars of Mexico’s electoral democracy. 

Article 35 § IX-7 of the constitution provides a strict framework regarding presidential recall election campaigns according to which, among other things, i) the INE has the exclusive power to promote a recall election; ii) the use of public funds is strictly prohibited; and iii) government propaganda (e.g., any information regarding government’s policy achievements) is strictly prohibited with only limited exceptions. The idea behind this provision is to ensure that the recall election is promoted in a balanced and neutral manner. After the Supreme Court’s decision holding on political parties’ active participation in recall elections processes, MORENA faced pushback from the Instituto Nacional Electoral (INE) given the party’s sheer disregard of both Supreme Court’s ruling and the constitution. For instance, days after the Supreme Court decision, the INE ordered a joint public statement in which 18 governors expressed their support to President Lopez Obrador and listed some policy achievements of his administration to be taken down. Led by President López Obrador, and as a response to the INE’s measures and orders to comply with the constitution and the Supreme Court’s ruling, members of Congress, cabinet members and party affiliates alike claimed that the INE was conducting an “anti-democratic campaign” seeking to thwart the recall election and censor them –a claim that would prove useful to justify what came next.

Against this backdrop, on mid-March, MORENA and its allies in Congress passed a decreto de interpretación auténtica (authentic interpretation decree) amending the LFRM and, most importantly, the Ley General de Instituciones y Procedimientos Electorales (LGIPE—the statute that regulates electoral processes) to redefine the concepts of “government electoral propaganda” and “impartiality” on the use of public funds. The immediate effect of the amendment was to allow government officials, legislators and party members to actively promote the recall election without being subject to any interference by the INE.

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Published on April 13, 2022
Author:          Filed under: Developments
 

You want it darker? The Brazilian Supreme Court Kills the Flame: The Temporary Suspension of Telegram Services in Brazil

—Lucas Henrique Muniz da Conceição, Ph.D. Student at Bocconi University

On March 18, Justice Alexandre de Moraes decided to suspend Telegram until the platform complied with the previous five decisions issued by the Supreme Court. The decision follows the partial results of the current judicial criminal inquiry no. 4781, in which investigations have uncovered an extensive system of financing and dissemination of disinformation, with calls to overthrow the Supreme Court and attack its Justices.

The first verses of Cohen’s song neatly summarize the conflict between the Brazilian constituted powers and Telegram, the messaging platform known for its laissez-faire attitude towards content moderation. If Telegram is the ‘dealer’ of disinformation, hosting a plethora of groups and accounts tasked only to antagonize the Brazilian democratic regime with authoritarian discourse, the Supreme Court and democracy itself will be ‘out of the game.’ Contrastingly, if only Telegram and other social media platforms can curtail the threat to democratic governance, it also means that constitutional democracy itself is ‘broken and lame.’

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Published on April 12, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


—Wilson Seraine da Silva Neto, Master Student at the University of Coimbra – Portugal; Postgraduate in Constitutional Law at the Brazilian Academy of Constitutional Law


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law.

“Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere.

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

Developments in Constitutional Courts

  1. The Supreme Court of Pakistan has ruled that Prime Minister Imran Khan’s move to dissolve parliament and call for early elections was unconstitutional.
  2. Former Portuguese Private Bank (BPP, acronym in Portuguese) administrator Paulo Guichard will have to serve a prison sentence of four years and eight months after the Constitutional Court rejected, last week, the claim of nullity of a ruling by that higher court.
  3. The Constitutional Court of South Africa has ruled that the Minister of Police is liable to pay damages for sloppy police work to a woman who was held hostage and repeatedly raped over a 15-hour period.
  4. Romania’s High Court upheld the 72-month jail sentence for bribery and abuse of office against former Minister of Development and Tourism Elena Udrea.
  5. The Federal Constitutional Court of Germany has rejected several challenges to the provisional application of a controversial free trade agreement between the EU and Canada.
  6. The Federal Supreme Court of Brazil ended a session this Thursday (7) with three votes to overturn decrees edited by President Jair Bolsonaro that restricted popular participation and governors in environmental agencies. The judgment is part of the package of actions on environmental issues selected by the court to compose the so-called “Green Agenda”.

In the News

  1. Judge Ketanji Brown Jackson is confirmed as the 116th justice of the U.S. Supreme Court by a vote of 53-47. Jackson becomes the first Black woman on the Supreme Court.
  2. Considered one of the most important jurists in Brazil, Dalmo de Abreu Dallari died this Friday (8). Dallari was professor emeritus at the Faculty of Law of the University of São Paulo (USP).
  3. Senate Judiciary Chairman Richard J. Durbin proposes a reexamination of baseball’s antitrust exemption.
  4. The Judicial Service Commission (JSC) has recommended four candidates for two vacancies in the Constitutional Court of South Africa.
  5. Inter-American Court of Human Rights ruled that the Peruvian State refrains from executing the release order until it decides on provisional measures requested by the representatives of the victims of the 1991/92 Cantuta and Barrios Altos killings for which former President Fujimori was convicted and sentenced.

New Scholarship

  1. Tamás Hoffman and Fruzsina Gárdos-Orosz (org.), Review of Central and East European Law (2022) (special issue on the effects of populist governance on the Hungarian Legal System).
  2. Jacco Bomhoff, Proportionality in Comparative Law (2022) (the paper presents brief overviews of work concerned with the (1) identification, (2) explanation, (3) interpretation, and (4) critique, of proportionality’s global diffusion and ‘success’).
  3. Adamilton Lima Borgneth and Jhonnatas dos Santos Sousa, Eduação e Direitos Huamnos: Teoria, prática e desafios em tempos de pandemia (2022) (analyzing education and other fields in human rights, referring to the Covid pandemic issue).
  4. Tom Gerald Daly, ‘Good’ Court-Packing? The Paradoxes of Democratic Restoration in Contexts of Democratic Decay (2022) (comparative analysis of the legitimacy of court-packing through case-studies of Turkey and Argentina).
  5. Mark Tushnet, Trust the Science But Do Your Research: A Comment on the Unfortunate Revival of the Progressive Case for the Administrative State (2022) (offers a critique of one Progressive argument for the administrative state)

Calls for Papers and Announcements

  1. The Charles University Faculty of Law will hold an international conference titled “European Constitutionalism and the Virus of Distrust” in Prague, Czech Republic on 27-28 April 2022.
  2. The Editorial Board of the Review of European Administrative Law (REALaw) is inviting young scholars to submit abstracts of maximum 500 words before 30 April 2022 to participate a new edition of the REALaw Forum.
  3. The German ICON-S Chapter invites abstracts and panel proposals for 2nd main conference “Margins in/of Law – Spielräume des Rechts” on the 15-16 September 2022 in Gießen. Deadline for abstracts and panel proposals is 15 April 2022.
  4. Observatory on Religious Freedom in the Jurisprudence of the European Court of Human (ORFECT) welcomes abstract on Freedom of religion or belief in times of migration by 30 May 2022 to the ORFECT Inaugural Conference will hold on 6-7 October 2022.
  5. VII International Congress on Human Rights of Coimbra extended deadline for the submission of proposals of symposiums by 18 April 2022.  

Elsewhere Online

  1. Adam Liptak, A Transformative Justice Whose Impact May Be Limited, The New York Times.
  2. Nicholas Reed Langen, The Justices Have No Clothes, Project Syndicate.
  3. Scholars and Professors at University of Coimbra, Investigando na UC, Diário As Beiras
  4. Valentina Montoya Robledo, Abortion Decriminalization in Colombia: Legal Fetishism or Practical Reform?, IACL-AIDC Blog
  5. United States Senate Committee on the Judiciary, Questionnaire for Judicial Nominees: Ketanji Brown Jackson Nominee to be Associate Justice of the Supreme Court of the United States
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Published on April 11, 2022
Author:          Filed under: Developments
 

Book Review: Tom Flynn on “The Mimetic Evolution of the Court of Justice of the EU” (Leonardo Pierdominici)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Tom Flynn reviews Leonardo Pierdominici’s book on The Mimetic Evolution of the Court of Justice of the EU (Palgrave Macmillan, 2020).]

Tom Flynn, University of Essex

This fascinating book analyses the development of the CJEU from its earliest days to the present through the lens of mimetism: that is, how the Court has ‘evolve[d] by facing several organizational challenges and by solving them through a selective internalization of internal and external comparative lessons.’[1] On this analysis, we can imagine the Court as a particularly inventive, discriminating, and shapeshifting magpie: borrowing the forms, procedures, and ideas of judicial and legal institutions across Europe and around the world in order to establish, preserve, and enhance its autonomy (p. 5) and its authority (p. 5-6). The author emphasises the originality of this approach: whereas whole forests and trillions of ones and zeros have been sacrificed to analysis of the CJEU’s role in the evolution of EU law; and to the study of its nature as an agent of comparative law; institutional analysis of the Court itself is rather less common. Pierdominici therefore situates his work within what he calls the ‘current discovery, or re-discovery, of historical studies in EU law’ (p.18).

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Published on April 9, 2022
Author:          Filed under: Analysis
 

Abusive Feminism

Rosalind Dixon, University of New South Wales

Last month, the Hungarian Parliament elected the country’s first ever female president, Katalin Novák.[1] Novák is a former minister for family policy and close ally of Prime Minister Viktor Orbán. She is also young, telegenic, and happy to talk about her role as a wife and mother. For many Americans, she brings to mind Sarah Palin and her 2008 “hockey mom” pitch for the Vice Presidency.[2]   

But as public lawyers what, if anything, should we make of her appointment? Since 2011, Orbán and the Fidesz party have wreaked havoc on Hungarian democracy. They have manipulated electoral boundaries and voting rules, and undermined judicial independence and other independent oversight bodies – and in ways that are likely to have lasting constitutional effects. Yet they are worried about the chances of opposition gains at the upcoming parliamentary elections. Their response: appointing a woman to prominent role in a bid to shore up support from female voters.

Descriptive representation of this kind benefits: it helps reset gendered norms and perceptions and provides potential role-models for others contemplating seeking high office. But it also has weaknesses: sometimes these kinds of appointments achieve limited or no change or are limited only to specific areas. Thus, the claim that notwithstanding the gains in-female board membership, gender equality doesn’t go beyond the boardroom.[3]

But there is even more at stake in Hungary. The threat is that women will be appointed to help successfully dismantle liberal democratic gains, including gains in the form of increased gender equality, and this form of appointment will be cloaked in the language of promoting (descriptive) female representation.

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Published on April 6, 2022
Author:          Filed under: Analysis