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Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

The Hamartia of the Constitutional Court of Turkey: Part II

–Dr. Ali Acar, Ph.D. in Law, EUI

“If research and writing can dwarf all of the pleasures of … heavens,

are not the humanists … miserable drudges? Taking an opiate and

then sitting in one’s corner, smiling blissfully, oblivious of the torments

of one’s brothers, is considered as respectable as heaven

 if the drug is scholarship. But is it less hellish?” [1]

The Way to a Tragedy

In Part I, I provided a brief account of the irrelevancy of some of the emergency decrees adopted following the July 15, 2016 coup attempt in Turkey to the underlying exigency of the emergency. In this Part, I consider and assess the Constitutional Court’s decision concerning some of these decrees.

The Republican’s People Party (CHP) challenged the constitutionality of some emergency decrees before the Constitutional Court, based on the claim that some regulations in the emergency decrees are irrelevant to the underlying exigency of the emergency. The Court rejected the CHP’s applications in four cases.[2] And here starts a tragedy caused by the hand (!) of the Court, which might otherwise have prevented the grief from taking place or at least worsening. In the judgments, the Constitutional Court relied on a strictly literal reading of paragraph 1 of Article 148 of Constitution. To remind the reader, Article 148 of the Constitution stipulates that emergency decrees are not subject to judicial review.

However, in spite of the wording of Paragraph 1 of Article 148 of the Constitution, the Constitutional Court did indeed review, in two cases in 1991,[3] the contents of emergency decrees and in fact struck down some of their provisions. These decisions have created a sort of precedent, and one had the right to believe that the Court had established a standard of review concerning emergency decrees. The Court ruled in those cases in 1991 that calling any measures a decree adopted under a state of emergency would not avoid constitutional review if the scope of the decree went beyond what was necessary under a particular state of emergency. In other words, the Court had held that the government may not regulate matters that are irrelevant to the exigencies of the state of emergency via emergency decrees.

The Constitutional Court now seems to have overturned its precedent without well-considered and well-crafted arguments. By relying on the strict literal interpretation of Paragraph 1 of Article 148, the Court is not convincing at all given the fact that the rest of the Constitution contains many elements to urge the Court to protect fundamental rights and freedoms, even in times of a state of emergency. Now, with the authorization and permission of the Court, anything can be put into the bag of emergency decrees. As a constitutional law scholar points out, “the executive can dissolve all political parties, adjourn the parliament or even prohibit the Constitutional Court from reviewing the constitutionality of laws with an emergency decree-law.”[4] Or the Constitutional Court itself might be dissolved altogether, as argued by a human rights scholar, Kerem Altıparmak. This would then amount to an indirect amendment of the Constitution.

The judgment of the Constitutional Court of October 12, 2016 on the emergency decrees can be considered as a hamartia, because what has been witnessed so far in Turkey urges one to think that a tragedy is on the way, if it has not already arrived.

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Published on April 4, 2017
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 Supreme Court of Venezuela reversed its prior decision to strip the National Assembly of its legislative powers.
  2. The European Court of Human Rights found that Greece’s failure to put in place protections for migrants against forced labor amounts to a violation of positive obligations under Article 4 of the Convention.  
  3. The Supreme Court of India reiterated that “untouchability” is unconstitutional, quashing an order for anticipatory bail granted to two accused who had insulted a member from a Scheduled Caste.
  4. Opposition parties in South Africa sought a Constitutional Court order to compel the National Assembly to impeach President Zuma.
  5. The US Supreme Court adopted a more favorable standard for evaluating intellectual disability, thereby restricting the use of death penalty.
  6. The High Court of Kenya ordered the Parliament to enact gender quota within 60 days, or face dissolution.

In the News

  1. Scotland’s First Minister Sturgeon formally requested that Theresa May allow a second referendum on independence.
  2. North Carolina repealed the controversial “Bathroom Law” but also preempted local ordinances expanding protections for LGBT individuals.
  3. The Uzbek Senate approved constitutional amendments to reform the judicial system.
  4. The Hawaii Federal District Court converted the prior temporary restraining order against President Trump’s second travel ban Executive Order into a temporary injunction.
  5. The Cairo Court for Urgent Matters nullified a previous court ruling by the Administrative Court annulling the Egyptian-Saudi maritime demarcation agreement.
  6. The Senate in Paraguay approved approved an amendment lifting the country’s one-term rule for presidents.
  7. Sixty Tunisian human rights groups signed a statement demanding that the 1973 decree that prohibits Muslim women to marry non-Muslims be revoked.

New Scholarship

  1. Vlad Perju, Dual Sovereignty in Europe? A Critique of Habermas’s Defense of the Nation-State (2017) (challenging Habermas’ influential thesis on European integration that hinges on dual sovereignty)
  2. Christopher McCrudden, What Does It Mean to Compare, and What Should It Mean?, in Samantha Besson, Lukas Heckendorn Urscheler & Samuel Jubé (Eds.), Comparing Comparative Law (2017) (unpacking various aspects of comparison, such as relevance, intelligibility, legibility, and the similarity/dissimilarity dichotomy)
  3. Sacha Garben, The Constitutional (Im)balance between ‘the Market’ and ‘the Social’ in the European Union, 13 European Constitutional Law Review (2017) (identifying imbalance between the market and the social dimension of the EU and providing a possible solution to address it)  
  4. Geoffrey R. Stone, Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century (2017) (providing an account of the interrelation and collision of sexual mores, religion, and law throughout the American history)
  5. Anastasia Karatzia, The European Citizens’ Initiative and the EU institutional balance: On realism and the possibilities of affecting EU lawmaking, 54 Common Market Law Review (2017) (describing the first years of operation of the European Citizens’ Initiative)
  6. Brian C. Jones (Ed.), Law and Politics of the Taiwan Sunflower and Hong Kong Umbrella Movements (2017) (addressing the legal and political significance of both movements, including the complex questions they posed as regards democracy, rule of law, authority, and freedom of speech)
  7. Lee Epstein & Eric A. Posner, The Decline of Supreme Court Deference to the President (2017) (describing the decline in the win rate of the Obama administration before the Supreme Court, in comparison to its predecessors)
  8. Aziz Z. Huq, Constitutionalism, Legitimacy, and Public Order: A South African Case Study, in Rosalind Dixon & Theunis Roux (Eds.), Constitutional Triumphs, Constitutional Disappointments (2017) (arguing that the citizens’ perception of policing can influence the legitimacy of a newly constituted regime, more than the public experiences with judges or other state officials)

Calls for Papers and Announcements

  1. The International Association of Constitutional Law (IACL) and LUISS University are co-organizing a roundtable on “Constitutional adjudication: traditions and horizons,” to be held in Rome on May 5-6, 2017 (registration required by May 1).
  2. The Sant’Anna School for Advanced Studies invites applications to its PhD program “Individual person and legal protections” (5 scholarships available). Applications are due by June 15, 2017.
  3. The Loyola University Chicago School of Law hosts its seventh annual Constitutional Law Colloquium, to be held in Chicago on November 3-4, 2017. The deadline for abstracts is June 20, 2017.
  4. The University of Warsaw and Max Planck Institute for Comparative Public Law and International Law invite postgraduates pursuing a doctoral degree to apply for a conference on “Article 7 TEU, the EU Rule of Law Framework and EU Values: Powers, Procedures, Implications,” to be held in Warsaw on September 13-15, 2017. Abstracts should be sent by April 30 to m.taborowski@wpia.uw.edu.pl and p.bogdanowicz@wpia.uw.edu.pl.
  5. The Howard League for Penal Reform invites submissions to its conference “Redesigning Justice: Promoting civil rights, trust and fairness,” that will take place in Oxford on March 21-22, 2018. Papers must be sent to anita.dockley@howardleague.org by December 4, 2017.
  6. Centro Studi sul Federalismo and the Instituto iberoamericano de Derecho Constitucional co-organize the International conference on “El federalismo en tiempos de transición,” to be held in Turin on October 16-17, 2017. Abstracts should be sent to itibam2017@csfederalismo.it by April 30.

Elsewhere Online

  1. Anne Sanders & Luc von Danwitz, The Polish Judiciary Reform: Problematic under European standards and a Challenge for Germany, Verfassungsblog
  2. Kirsty Hughes, Brexit after Article 50: a rollercoaster ride, Blog of the Centre on Constitutional Change
  3. Alan Whysall, Following Monday’s deadline, the future of devolved government in Northern Ireland remains uncertain, The Constitution Unit
  4. Jennifer Oliva, Access, Affordability, and the American Health Reform Dilemma, Part III: How an ACA Repeal Would Devastate Appalachia, OxHRH
  5. Monica Hakimi, North Korea and the Law on Anticipatory Self-Defense, The European Journal of International Law
  6. Grace Yang, Why NOW is the Time to Comply with China’s Employment Laws, Part 2, China Law Blog
  7. Nidhal Mekki, The law on local and regional elections: a step towards local democracy in Tunisia, ConstitutionNet
  8. Joaquín Urías, Damaging the Legitimacy of the Spanish Constitutional Court, Verfassungsblog
  9. Hawaii Federal District Court Converts TRO Against Travel Ban To Preliminary Injunction, Religion Clause
  10. Randy Barnett, Not an April Fools’ Day post: Another contradictory attack on originalism, The Volokh Conspiracy
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Published on April 3, 2017
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Five Questions with Carlos Bernal

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions with … ” features Carlos Bernal, a leading scholar of constitutional theory and one of the most cited scholars in Latin America–his citation count in that region alone is now well over 20,000. His full bio follows below:

Carlos Bernal is an Associate Professor at Macquarie Law School (Sydney, Australia). He holds an LL.B. from the University Externado of Colombia (Bogotá – Colombia) (1996), an S.J.D. from the University of Salamanca (Spain) (2001), as well as an M.A. (2008) and Ph.D. in Philosophy (2011) from the University of Florida (U.S.A). He has held a visiting professorship at the University of Paris X (Nanterre), and Senior Research Fellowships at the Yale Law School and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).

His scholarship focuses on the interpretation of constitutional rights, comparative constitutional change, general jurisprudence–in particular on the intersection between social ontology and legal theory–and the philosophical foundations of tort law. He supervises doctoral students in comparative constitutional law and legal theory. He is currently completing a research project on constitutionalism and democratic participation on online platforms.

1. Tell us about something you are working on right now.

This year I am working on two projects. The first one is on the nature and legitimacy of constitution-making, and how our conceptions about that should impact our recourse to popular engagement in current and future constitution-making procedures by traditional methods (such as referenda) and also innovative on-line strategies. The second project is on the constitutional implementation of the peace agreement in Colombia. 

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I try to write every day.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

There are three dimensions relevant to the fields of constitutional theory and comparative constitutional law: the empirical and strategic, the conceptual, and the normative. On the first, the scholars whose work jumps to the top of my reading list are Ran Hirschl, Tom Ginsburg, Ros Dixon, David Landau, Gabriel Negretto, and Javier Couso; on the second, Robert Alexy, Vicky Jackson, Jose Joaquim, Gomes Canothilo, Victor Ferreres, Virgilio Afonso da Silva, Manuel Jose Cepeda, Adrienne Stone, Richard Albert, David Dyzenhaus, and Joel Colon-Rios; and on the third, Jeremy Waldron, Joseph Raz, Juergen Habermas.

4. Is there an article or book that influenced you as a student and that continues today to be an important reference point for you?

Alexy’s Theory of Constitutional Rights; Nino’s Fundamentos de derecho constitucional; Kelsen’s 1925 Allgemeine Staatslehre, and Jellinek’s System der subjektiven öffentlichen Rechte.

5. What are some of the big questions ripe for inquiry in your area of research interest?

There are many but I will mention only seven:

What criteria (and limits) should guide popular engagement in constitution-making?

How should constitutional change (formal and informal) be constitutionally regulated?

How should big data influence constitutional design and change?

What should be the scope of constitutional rights in transnational law, specifically with respect to the increasing power of transnational corporations?

How should citizenship be understood in our transnational and digital age?

How can constitutionalism and democracy capitalize on the advantages and minimize the risks of the digital age?

How may we improve the use of constitutionalism for improving the life of the most vulnerable people in the global south?

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Published on March 31, 2017
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The Hamartia of the Constitutional Court of Turkey: Part I

— Dr. Ali Acar, Ph.D. in Law, European University Institute

Introduction

The dismissals of so many academics by an emergency decree in early February has sparked, once again, a public debate concerning the controversial judgments of the Constitutional Court of Turkey delivered on October 12, 2016, which dealt with the emergency decrees adopted after the disastrous coup attempt of July 15, 2016. The Court declined to review the emergency decrees. The effects of these judgments continue within the country. These judgments are, in a sense, the cause of serious criticism of the state of emergency measures by international organizations including the Council of Europe and its Venice Commission, the European Union, as well as global human rights NGOs.

The state of emergency was declared by the Council of Ministers for three months to be effective throughout Turkey as of July 20, 2016. It has been prolonged twice, so far, for the following six months. It is expected to end on April 19, 2017, during which time Turkey will hold a constitutional referendum.

Constitutions in the modern world anticipate extraordinary situations and accordingly regulate what to do and how to handle these situations legally. The 1982 Constitution of Turkey’s response to the state of emergency is that the Council of Ministers presided by the President can adopt emergency decrees that have force of law. Unlike decrees having force of law in ordinary times, the Council of Ministers does not need a prior authorization of the Parliament for emergency decrees. Unlike the limited scope of ordinary decrees, emergency decrees can have a broad scope of regulation, which may even include suspension of fundamental rights and freedoms. Unlike ordinary decrees, Paragraph 1 of Article 148 stipulates that the emergency decrees cannot be challenged before the Constitutional Court; i.e. they are not subject to judicial review.

Although emergency decrees may have a far-reaching scope, this does not mean that they have unlimited capacities; at least that is not what the 1982 Constitution of Turkey is deemed to envisage. First of all, emergency decrees must meet the proportionality test, which implies they be in compliance with the exigencies that led to declaration of the state of emergency. Pursuant to Paragraph 2 of Article 121 of the Constitution, all measures to be taken by emergency decrees shall be “necessitated by the state of emergency.” The same is required in Article 15, which lays down the conditions of suspension of fundamental rights and freedoms in extraordinary situations. According to Article 15, emergency decrees are subject to further limits derived from the obligations of international law. In addition to these, Article 15 specifies some core rights and freedoms that cannot be subject to regulation by emergency decrees, such as the right to life, prohibition of torture, presumption of innocence, prohibition of retroactive implementation of crimes and punishments, non-compulsion to reveal one’s religion, conscience, thought and opinion, etc.[1]

The motive that led to the state of emergency following the coup attempt of July 15 was described by the National Security Council at its meeting of July 20, 2016 as the following: “A treasonous terrorist organization called FETO (the followers of Muslim cleric Fettullah Gulen) attempted a coup on July 15, 2016 with the hands of its infiltrators in the Turkish military… In this respect, it is hereby decided to recommend to the government that the state of emergency be declared in accordance with Article 120 of the Constitution in order to take effective measures to protect our democracy, the principle of rule of law, and citizen’s rights and freedoms. This recommendation aims, merely and exclusively, to facilitate actions to get rid of the threats directed at democracy, the rule of law, rights and freedoms.” For the same reason, a parliamentary inquiry commission was established on July 26, 2016, to investigate the coup attempt and the FETO organization’s involvement in it.

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Published on March 30, 2017
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The Constitutional Burden of the Global Imagination (I-CONnect Column)

Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India

[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 2017, see here.]

The global political imagination is converging – incredibly so. Across varied lands spanning diverse development markers in the liberal constitutional democratic world – the political imagination of the voting public is showing a marked convergence. The ingredients of this convergence – discontent with social and economic inequality (including but not necessarily anti-globalisation), Islamophobia, an anti-immigrant platform, a disdain of mainstream media as a source of news and anti-intellectualism.

Much of this political convergence strains the constitutional fabric of liberal jurisdictions. These jurisdictions like the United States, Western Europe, India, South Africa amongst others have legal traditions located in non-discrimination, equal treatment, freedom of expression, multiculturalism and/or secularism. The manifestation of this convergence includes Britain Brexiting from Europe, a Trump Presidency, the rise of the far right in France, Hungary and (to lesser extent) Germany and the electoral consolidation of Hindutva politics in India. In Marine Le Pen’s words, “a new world has emerged in the past years. This is Vladimir Putin’s world, Donald Trump’s world in the United States and Mr Modi’s world in India” (The Guardian, March 24, 2017).

This convergence has many catalysts – including an economic catalyst in inequality and a lack of jobs. The message of Le Pen, Trump and Modi resonates through troubled economies. India’s largest selling English newspaper, The Times of India wrote ominously on February 9, 2016 that between 2005 and 2012, India’s Gross Domestic Product (GDP) growth was 54% but its net job growth was only 3%. Essentially only 15 million net new jobs were created in that time. Further, assuming a 7-8% annual growth, India’s GDP would double by 2025 However, while the country will add over 80 million net new job seekers, only 30 million net new jobs – mostly informal and low-wage ones – will be created.

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Published on March 29, 2017
Author:          Filed under: Analysis
 

Book Review: Joshua Segev on Daniel Friedmann’s “The Purse and the Sword: The Trials of Israel’s Legal Revolution”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Joshua Segev reviews Daniel Friedmann’s book on The Purse and the Sword: The Trials of Israel’s Legal Revolution (Oxford 2016)]

Dr. Joshua Segev, Associate Professor, Netanya Academic College School of Law, Israel

The Purse and the Sword, by Daniel Friedmann, is a fascinating book. It offers special insights for scholars of comparative constitutional law and followers of Supreme Courts around the world. This book provides all the “juicy details” of what has transpired behind closed doors, while describing and analyzing the expansion of the powers of Israel’s Supreme Court (the “Court”) and the weakening of the political leadership in the context of major issues faced by modern Israel.

Part of the book’s unique contribution is connected to the multi-faceted point of view of the author himself, a prominent legal scholar, who was appointed Israel’s Minister of Justice (2007-09), partly because of his critical stand on the Court. The book, while not devoid of theoretical shortcomings and weaknesses, pierces the veil of excellence, success and accomplishment of the “Supremes” in Israel. Thus, it provides a sobering reminder of the dangers of over-rationalizing judicial supremacy and the world’s new constitutional culture.

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Published on March 28, 2017
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What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher (University of Antwerp)

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 Council of Grand Justices in Taiwan hears a landmark case that could see the island become the first region in Asia to allow same-sex marriage.
  2. The Federal Constitutional Court of Germany dismissed a constitutional complaint against the public appearance of the Turkish PM in the city of Oberhausen, in February.
  3. The Supreme Court of Japan found that an existing gender gap in eligibility for receiving a survivor’s pension under the law on local public servants’ compensation does not violate the Constitution.
  4. The Supreme Court of Argentina ruled that the Inter-American Court of Human Rights cannot revoke a 2001 decision by the Supreme Court.
  5. The Venice Commission gave its opinion on the lasting conflict in Slovakia concerning vacancies on the Constitutional Court.
  6. The French Conseil Constitutionnel launched a full investigation into the EU-Canada free trade deal CETA.

In the News

  1. The Scottish Parliament postponed a vote on calling for a new independence referendum after Westminster attack. The vote will now take place one day before article 50 is triggered.
  2. British Prime Minister Theresa May will trigger Article 50 of the Treaty of Lisbon on Wednesday.
  3. The Uttarakhand High Court in India recognised Ganga and Yamuna rivers to be “living entities,” affording them all rights guaranteed by the constitution.
  4. The National Assembly in Pakistan passed a constitutional amendment to reinstate secret military courts that try civilians charged with terrorism offences.
  5. Prosecutors interrogated South Korean ex-president over the corruption and abuse of power scandal.
  6. The legislator Suzy Nashed in the Egyptian Parliament announced the intention to submit a draft law that would force Egypt’s State Council to appoint female judges.

New Scholarship

  1. Ran Hirschl, Going Global? Canada As Importer and Exporter of Constitutional Thoughtin Richard Albert and David R. Cameron (eds.), Canada In The World: Comparative Perspectives On The Canadian Constitution (Cambridge University Press, forthcoming 2017) (assessing the transformation of Canada’s stature as “giver” and as “taker” of constitutional thought)
  2. Antonios Kouroutakis, The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis (2017) (examining the constitutional value of sunset clauses from normative aspects with regards so deliberative and consensus democracy, parliamentary sovereignty, and constitutional dialogue)
  3. Ulrich Karpen and Helen Xanthaki (eds.), Legislation in Europe, A comprehensive guide for scholars and practitioners (2017) (analyzing general principles and best practices within the context of the different systems of government in Europe)
  4. Giuseppe Martinico, Building supranational identity: legal reasoning and outcome in Kadi I and Opinion 2/13 of the Court of Justice, 2 Italian Journal of Public Law (2016) (exploring the role of the Court of Justice of the European Union as interpreter of the constitutional identity of the EU)
  5. Patricia Popelier and Catherine van de Heyning, Subsidiarity post-Brighton: procedural rationality as answer? 30 Leiden Journal of International Law (2017) (examining the approach of the European Court of Human Rights to subsidiarity and procedural rationality review)
  6. Angela Di Gregorio and Arianna Angeli (eds.), The Eurasian Economic Union and the European Union, Moving toward a greater understanding (2017) (analyzing the evolution of geopolitical and economic integration in the Eurasian area)
  7. Diego Werneck Arguelhes and Ivar A. Hartmann, Timing Control without Docket Control: How Individual Justices Shape the Brazilian Supreme Court’s Agenda, 5 Journal of Law and Courts (2017) (exploring the use of the pedido de vista power by the Brazilian Supreme Court as an informal mechanism of timing the control)
  8. Eva Maria Belser, Maurizio Maggetti-Waser, and Nico Steytler, Power Sharing in Sri Lanka, Some comments and recommendations to the constitutional debate from a comparative perspective (2016) (discussing the Sri Lankan constitutional process and controversies in comparative perspective)

Call for Papers and Announcements

  1. Journal of Liberty and International Affairs invites submissions for its special issue on “Western Balkan Countries and the European Union: Past Achievements, Current Situation, and Future Perspectives.” Submissions are due by June 1, 2017.
  2. The bEUcitizen Project organizes the final conference of the project, on “The Future of EU Citizenship,” to be held on April 26-28, 2017.
  3. The Students’ Union of the Faculty of Political Science in Zagreb invites submission to its conference on “Democracy at a Turning Point?,” to be held on June 12-14, 2017. Abstracts are due by April 1, 2017.  
  4. The Faculty of Law of Ghent University invites submissions for its conference on “Freedom under Pressure,” on June 16, 2017. The conference seeks to discuss key fundamental rights and freedoms under pressure in three distinct areas: data protection and privacy; freedom of movement in the EU; and public policy and property protection. Abstracts are due by April 30, 2017.
  5. The School of Law at Queen Mary University of London organizes its Eighth Annual Postgraduate Legal Research Conference, to be held on June 16, 2017. This year on the theme: “Overturning paradigms.”
  6. The Government of the People’s Republic of China invites students and scholars from developing countries to study in China with a full scholarship by the Chinese Ministry of Education for UNESCO. Applications are due by April 20, 2017.
  7. The Max Planck Foundation for International Peace and the Rule of Law in Heidelberg invites interested scholars to apply for a research project on administrative law in Afghanistan. Applications are due by April 2, 2017.

Elsewhere Online

  1. Catherine Bond, Locating the Place of the Royal Prerogative After Miller, AUSPUBLAW
  2. Thomas Adams, A puzzle from Anisminic, Admin Law Blog
  3. Saeed Bagheri, Derogating from Fundamental Human Rights under the Turkish State of Emergency, Oxford Human Rights Hub
  4. Stéphanie Hennette-Vauchez, Thomas Piketty, Guillaume Sacriste, and Antoine Vauchez, European parliamentary sovereignty on the shoulders of national parliamentary sovereignties: A Reply to Sébastien Platon, Verfassungsblog
  5. Monique Steijns, Achbita and Bougnaoui: raising more questions than answers, eutopia law
  6. Jonathan Hafetz, President Trump’s Revised Travel Ban: The Underlying Problem of Religious Discrimination Remains, JURIST
  7. Eva Brems, European Court of Justice Allows Bans on Religious Dress in the Workplace, Blog of the IACL, AIDC
  8. Ascher Nathan, Brexit at Westminster: can parliament play a meaningful role?, The Constitution Unit
  9. Mark Elliott, Discarding the fig-leaf of analytical reasoning? The Hutton case and the law/fact distinction, Public Law for Everyone
  10. Christina Lienen, Why the Implications of ‘No Deal’ Are No Mere ‘Exercise in Guesswork,’ UK Constitutional Law Association
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Published on March 27, 2017
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Five Questions with Victor Ferreres Comella

Richard Albert, Boston College Law School

“Five Questions with … ” is a brand new feature at I-CONnect. We will periodically invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions with … ” features Victor Ferreres Comella, a member of the Governing Council of the International Society of Public Law (ICON-S). His full bio follows below:

Victor Ferreres Comella, Professor of Constitutional Law, Pompeu Fabra University (Barcelona) obtained his JSD at Yale Law School, with a thesis on Judicial Review and Democracy (1996). His work has focused on constitutional courts, fundamental rights, European supranational structures, and arbitration. His most recent books are Constitutional Courts and Democratic Values. A European Perspective (Yale University Press, 2009), and The Constitution of Spain: A Contextual Analysis (Hart Publishing, 2013). He has also written two books in Spanish: Justicia constitucional y democracia (Centro de Estudios Políticos y Constitucionales, 1997), which won the “Francisco Tomás y Valiente” Prize, and El principio de taxatividad en material penal y el valor normativo de la jurisprudencia (Civitas, 2002). As a visiting professor, he has taught at New York University School of Law (2001, 2003, and 2007), and at the University of Texas School of Law (2005, 2009, 2010, 2011, 2012, 2013, 2014, 2015, and 2016). For ten years (2001-2011) he also taught at the Spanish Judicial School.

1. Tell us about something you are working on right now.

I am currently working on a book on arbitration, which seeks to explore the most important constitutional issues that the growing practice of arbitration raises. My discussion covers arbitration in private law, in the field of investment law, and in the domain of public international law.

2. How and when do you write? Do you have a routine or do you write whenever and wherever you find the time?

I normally have a book project to work on, and I try not to be distracted with too many commitments to write on other topics. However, I do not write every day. I devote long periods to do background reading, and then I spend time on intense writing. I always have a document, however, where I register the main ideas as I go on with my research. I also like to keep notes of all the important books and articles that are relevant. I do not use all those notes for the book, but I find it very useful to keep that material as a source of basic information. It is also helpful to use that material to prepare courses or seminars on the subject.

3. Whose scholarship jumps to the top of your reading list when she or he publishes something new? 

There are several authors in the area of constitutional and legal theory whose work has always interested me: Bruce Ackerman, Owen Fiss, Lawrence Sager, Sanford Levinson, Cass Sunstein, Mark Tushnet, Vicki Jackson, Ronald Dworkin, Jeremy Waldron quickly come to mind.

4. Is there an article or book that influenced you as a law student and that continues today to be an important reference point for you?

I wrote my doctoral dissertation at Yale Law School on the potential tension between judicial review and democracy. The classical work that triggered the modern discussion on this issue in the United States is Alexander Bickel’s book, “The Least Dangerous Branch”. I was very impressed by it. Bickel offered interesting ideas, such as his defense of the “passive virtues”. My own work on constitutional courts in Europe was shaped, in part, as a response to Bickel. I tried to make the case that constitutional courts patterned after the centralized model have an “anti-Bickellian” tendency, for they are structurally designed to be relatively activist, not passive.

5. What are some of the big questions ripe for inquiry in your area of research interest?

I think one of the largest questions on the table is how to make sense of the role of domestic constitutions in the context of globalization and regionalization. There is still a lot of interdisciplinary work that needs to be done in this area, especially in order to better understand the forms of democracy in our present and future world.

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Published on March 24, 2017
Author:          Filed under: Reviews
 

When Courts Decide not to Decide: Understanding the Afghan Supreme Court’s Struggle to Decide the Fate of the Dismissed Ministers

–Shamshad Pasarlay, Herat University School of Law and Political Sciences

On November 12, 2016, the Wolesi Jirga, the Afghan parliament’s lower house, began a process of impeaching cabinet ministers who had not been able to spend more than 70 percent of their ministry development budget for the financial year of 2015. As part of this process, the parliament voted seven key ministers out of office. The executive, however, strongly objected to the parliament’s decision to remove these ministers. President Ashraf Ghani instructed the dismissed ministers to remain in office, and asked the Supreme Court to reverse the parliament’s decision. However, as of March 20, 2017 (more than four months since the parliament’s decision), the Court is yet to decide on the constitutionality of the parliament’s decision to remove these ministers. During this time, the parliament several times asked the executive to introduce new candidates to fill the position of the dismissed ministers. The executive, however, is waiting for the final decision of the Court before taking further actions in this regard.

The current political controversy between the executive and the legislature presents the most serious situation facing the Afghan Supreme Court. The parliament has rejected the Court’s jurisdiction in this matter, and has made it clear that it would not accept the Court’s final decision. The parliament maintains that while Article 121 of the Constitution gives the Court the power to review the constitutionality of laws, it does not authorize the Court to decide on the constitutionality of the parliament’s appointment and removal powers. Thus, sensing a possible political backlash from its decision on the constitutionality of the parliament’s power to remove cabinet ministers, the Court has apparently employed strategic avoidance – to date, the Court has decided not to decide this time-sensitive political controversy.

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Published on March 22, 2017
Author:          Filed under: Developments
 

What’s New in Public Law

Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and LL.M. student at NYU

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 held that a workplace ban on the wearing of political, philosophical or religious symbols does not necessarily constitute direct discrimination.
  2. The Polish Constitutional Court upheld a bill regulating and limiting public gatherings, which President Duda declined to sign late last year.
  3. The Constitutional Court of South Africa held the Social Development Minister responsible for the social grants crisis and ordered the Social Security Agency (Sassa) with its contractor to continue to pay social grants until another entity is able to do so.   
  4. The Supreme Court of India issued a bailable warrant against Justice Karnan of the Calcutta High Court due to his absence before the Court in a contempt proceeding.   
  5. The Supreme Court of Canada reversed convictions against a defendant who was found guilty based on evidence gathered in a warrantless home entry.
  6. The Zambian Complainants Commission reprimanded Constitutional Court judges over their demand that the public should not be allowed to complain against Constitutional Court officials.

In the News

  1. A United States District Court judge in Hawaii issued a nationwide suspension of President Trump’s new executive order on immigration.
  2. The UK Parliament passed the ‘Brexit’ Bill to authorize the government to trigger Article 50 of the Lisbon Treaty.
  3. Scottish First Minister, Nicola Sturgeon will ask permission for holding a second referendum on Scotland’s independence.
  4. Following the impeachment of President Park Geun, South Korean parliamentarians discuss the possibility of a constitutional amendment to restructure the Presidency.  
  5. Myanmar’s Minister of Religious Affairs declared that the 2008 Constitution should be amended because of its contradiction with Buddhist beliefs as well as the people’s aspirations.
  6. A Diet panel resumed its discussions whether the Japanese Constitution should be amended in order to extend lawmakers’ terms in cases of major disasters.
  7. The European Union will assess planned Turkish constitutional changes in light of the country’s status as a candidate for EU membership.  

New Scholarship

  1. Bui Ngoc Son, The Global Origins of Vietnam’s Constitutions, Illinois Law Review (2017) (discussing four mechanisms of global diffusion of constitutional rights and the case of Vietnam)
  2. Manuel José Cepeda & David Landau, Colombian Constitutional Law. Leading Cases (2017) (providing in English the case law of the Colombian Constitutional Court, along with introduction to the Court in historical and comparative context)
  3. Karen J. Alter & Laurence R. Helfer, Transplanting International Courts: The Law and Politics of the Andean Tribunal of Justice, Oxford University Press (2017) (analyzing the most active and successful transplant of the European Court of Justice: the Andean Tribunal)
  4. Craig Martin, The Legitimacy of Informal Constitutional Amendment and the ‘Reinterpretation’ of Japan’s War Powers, Fordham International Law Journal (2016) (examining the legitimacy of the Cabinet reinterpretation of the war-renouncing Article 9 of the Japanese Constitution)
  5. David Bilchitz, Pobreza y Derechos Fundamentales, Marcial Pons (2017) (Spanish edition of ‘Poverty and Fundamental Rights’ (Oxford University Press 2007) with new preface and translation by Jorge Portocarrero Quispe) (providing a justification for fundamental rights and judicial review, and a defence of a revised version of the ‘minimum core approach’ to socio-economic rights)
  6. Ling Li, The Chinese Communist Party and People’s Courts: Judicial Dependence in China, American Journal of Comparative Law (2016) (offering an integrated and coherent account of the relationship between the Chinese Communist Party and China’s courts)

Calls for Papers and Announcements

  1. The WZB Berlin Social Science Center, the European University Institute and the London School for Economics and Political Science invite submissions for the Inaugural Annual European Junior Faculty Forum for Public Law and Jurisprudence to be held at WZB Berlin Social Science Center on June 28-29, 2017.
  2. ICON and the Jean Monnet Center at NYU invite submissions for its workshop on “Public Law and the New Populism” to be in New York City held on September 15, 2017. Abstracts should be sent to daniel.francis@law.nyu.edu by March 31, 2017.
  3. The Comparative Constitutional Law and Administrative Law Quarterly (CALQ) invites submissions to its forthcoming volume. The submission deadline is May 10, 2017.
  4. The Groupe de recherche sur les sociétés plurinationales (GRSP), in association with the Peter MacKell Chair in Federalism at McGill’s Faculty of Law, Laval University and the Université du Québec à Montréal organizes a colloquium on “Canadian Federalism and its Future: Actors and Institutions” to be held on March 23-24, 2017.
  5. The International Journal of Human Rights and Constitutional Studies published a special issue on Public Space and Fundamental Rights (2016).
  6. Externado, Rosario, and los Andes Universities organizes a symposium on “Rethinking and Renewing the Study of International Law in/from/about Latin America” that will take place in Bogota on September 26 to 28, 2017. Abstracts should be sent to paola.acosta@externado.edu.co by April 3, 2017.  
  7. The Centre d’études juridiques européennes of the University of Geneva, Jean Monnet Centre of excellence invites doctoral students and junior scholars to submit proposals summaries for its workshop “The EU as a global actor in…” to be held in Geneva, on July, 2017. The submission deadline is March 27, 2017.
  8. The Society of Legal Scholars invites submissions to its annual conference on “The Diverse Unities of Law” to be held in Dublin, on September 5-8, 2017. The deadline for abstracts and paper proposals is March 27, 2017.  
  9. The journal Comparazione e diritto civile invites paper submissions for its forthcoming issue on “Who needs comparative law?” The deadline for submissions is April 30, 2017.

Elsewhere Online

  1. Stephen Tierney, A Second Independence Referendum in Scotland: The Legal Issues, UK Constitutional Law Association
  2. Ewan Smith & Alison Young,  “That’s how it worked in 2014, and how it would have to work again,” UK Constitutional Law Association
  3. Mark A. Graber, President Trump and American Constitutionalism, OUPblog
  4. Selin Esen, The 2017 Constitutional Reforms in Turkey: Removal of Parliamentarism or Democracy? Blog of the IACL, AIDC
  5. Daniel Marari, Stripped of Dignity: The Struggle for LGBT Rights in Tanzania, AfricLaw
  6. Pierre de Vos, Con Court SASSA judgment: In this Game of Thrones, can Minister Dlamini survive?, Constitutionally Speaking
  7. Satang Nabaneh, New Gambia and the Remaking of the Constitution, ConstitutionNet
  8. Marjorie Cohn, Evaluate New Travel Ban in Light of International Law, JURIST
  9. Yoon Jin Shin & Mattias Kumm, Impeaching Remnants of the Authoritarian Past: A Constitutional Moment in South Korea, Verfassungsblog
  10. Stylianos-Ioannis G. Koutnatzis, State Reform in Greece: Legal and Practical Considerations, Verfassungsblog
  11. Juan Pappier, The ‘Command Responsibility’ Controversy in Colombia, Blog of The European Journal of International Law
  12. Stephan Schill, The Constitutional Frontiers of International Economic Law, Blog of The European Journal of International Law
  13. Conor Gearty, Human Rights To BREXIT …. And Beyond, AUSPUBLAW
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Published on March 20, 2017
Author:          Filed under: Developments