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Blog of the International Journal of Constitutional Law

Call for Papers—Symposium on the Origins, Migration and Influence of the Basic Structure Doctrine—India—March 21-22, 2019

Jindal Global Law School
Delhi, India
March 21-22, 2019

The Organizing Committee invites submissions for a two-day Symposium on the Indian Constitution’s Basic Structure Doctrine. This Symposium on The Origins, Migration and Influence of the Basic Structure Doctrine will be held on the campus of Jindal Global Law School on Thursday and Friday, March 21-22, 2019. The program is convened by Richard Albert (Texas), Alexander Fischer (Jindal), and Sarbani Sen (Jindal).

Subject-Matter of Symposium

The creation of the Basic Structure Doctrine is one of the most important public law developments of the twentieth century. First articulated in court and judicially enforced in India, the Doctrine has since migrated across the globe and continues today to gain new adherents. In spite of its popularity, the Doctrine has attracted its fair share of critics. In this Symposium, we will discuss the Doctrine, including both its successes and failures, and we welcome submissions proposing to discuss the origins, migration and influence of the Doctrine in any part of the world.

Eligibility

Submissions are invited from scholars of all ranks, including doctoral students.

Publication

The convenors intend to publish a selection of papers in an edited book and a set of invited papers in the Indian Law Review. An invitation to participate in this Symposium will be issued to a participant on the following conditions: (1) the participant agrees to submit an original, unpublished paper of 8,000 words, all notes included, consistent with submission guidelines issued by the symposium convenors; (2) the participant agrees to submit a pre-Symposium draft by February 1, 2019; and (3) the participant agrees to submit a full post-Symposium final draft by August 1, 2019. All papers should conform to OSCOLA citation conventions.

Submission Instructions

Interested scholars should email a CV and abstract no longer than 750 words by July 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-symposium draft to be submitted by February 1, 2019. Scholars should identify their submission with the following subject line: “Symposium on Basic Structure Doctrine—Abstract Submission.” All materials should be submitted in PDF.

Notification

Successful applicants will be notified no later than August 15, 2019.

Costs

There is no cost to participate in this Symposium. Jindal Global Law School will generously cover the cost of food onsite at the conference venue, local accommodation as well as return travel between the Delhi International Airport and Jindal Global Law School. Successful applicants are responsible for securing their own funding for all other expenses.

Questions

Please direct inquiries in connection with this Symposium to:

Richard Albert
The University of Texas at Austin
richard.albert@law.utexas.edu

Alexander Fischer
Jindal Global Law School
acfischer@jgu.edu.in

Sarbani Sen
Jindal Global Law School
ssen@jgu.edu.in

About the Convenors

Richard Albert is Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, chair-elect of the AALS Section on Comparative Law, and a former law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Oxford, Harvard and Yale, where he served as Senior Editor of the Yale Law Journal.

Alexander Fischer specializes in comparative constitutional law with particular reference to India. Before joining Jindal Global Law School he was a lecturer at SOAS, School of Law (University of London) and at the South Asia Institute, Department of Political Science, University of Heidelberg. Alex was visiting scholar at the Global Legal Studies Center (GLS), University of Wisconsin Law School (2012) and visiting fellow at the Centre for the Study of Law and Governance, Jawaharlal Nehru University (2004-2005, with research grants from the Indian Council for Cultural Relations and the German Academic Exchange Service). Alex holds degrees from the London School of Economics and Political Science (LLM & BA Anthropology and Law) and from the University of Heidelberg (PhD & MA Political Science). His most recent publication is a co-edited book: “State and Society in South Asia: Themes of Assertion and Recognition” (2014, Samskriti, New Delhi).  He was Assistant Series Editor (2007-2011) for Constitutional Systems of the World, Hart Publishing, and Deputy Editor (from 2002 to 2006) of the Heidelberg Papers in South Asian and Comparative Politics.

Sarbani Sen is Associate Professor of Law and Executive Director of the Center for Constitutional Law Studies at Jindal Global Law School, NCR, India. Her teaching and research interests include constitutional foundings and subsequent transformations; separation of powers and the scope of inter institutional dialogue between the court and the legislature on constitutional issues; emergence of social and economic rights and the “transformative” potential of the constitution.She is the author of “Popular sovereignty and democratic transformation: the constitution of India” [OUP 2007] and articles on refugee law and on using social and economic rights as instruments of development. She was recently selected to the Scholarship Advisory Group of the Younger Comparativists’ Committee of the ASCL [2017- 2018]. Her proposal was the recipient of a Ford Foundation grant for co-organizing a conference on “South Asian Constitutionalism” to be held at Colombo in July 2018 between Jindal Global Law School and the Center for the Advanced Study of India at the University of Pennsylvania. She is also currently working as part of an international research group named “Towards understanding southern welfare — ideational and historical foundations of social policies in Brazil; China; India and South Africa” organized by the Center for Interdisciplinary Studies at the University of Bielefeld. She has degrees from the University of Delhi; London School of Economics and Yale.

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Published on May 11, 2018
Author:          Filed under: Developments
 

Five Questions with Lorenza Violini

Richard Albert, The University of Texas at Austin

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about his or her research.

This edition of “Five Questions” features Lorenza Violini, Professor of Law at the University of Milan. Her full bio follows below:

Lorenza Violini is a professor of law at the State University of Milan. She was trained in Italy, Germany, and the United States, where she received a master’s degree from the University of Illinois at Urbana-Champaign. She researches and teaches in the fields of human rights, comparative law, and constitutional law.

Professor Violini has been appointed as head of the Department of Italian and Supranational Public Law of the State University of Milan and formerly served as director of the Department of Public, Civil Procedure, International, and European Law of the same university (2010–12). She has been a member of the Management Board of the EU Agency for Fundamental Rights, the Scientific Committee for Family of the Lombardy Region, and the Union of the Italian Catholic Jurists. In 2013 she served as a member of the Italian Government Committee for Constitutional Reform. Currently she serves as a member of the Bioethics Commission of the National Research Council and she is a member of the Board of the Italian Association of Constitutional Law.

Professor Violini’s written works include Human Dignity and Right to Life (2013, with Marilena Gennusa), Legal Traditions in Dialogue: Elementary Experience Tested by Diversity (2012, with Paolo Carozza), and Bioethics and Laicity (2008).

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

I am currently working on three main projects:

The first deals with the role of non-judicial bodies (Agencies, National Human Rights Institutions, Monitoring bodies etc.) as key actors for a global fundamental rights protection policy. This non-judicial approach is intended to help developing a comprehensive fundamental rights protection, which cannot be limited to the role of the judiciary.

Secondly, I am working on the relationship between Constitutionalism and Sustainable Development and in particular on the implementation of Goal 16 of the UN 2030 Agenda (a project recently financed by the Italian Ministry of Education within the Department of Excellence Program).

A third stream of my research is focused on the institutional relations between State and Regions in the light of the EU integration process and as an answer to the quest of autonomy which is widespread in European member states, as the case of Catalonia clearly shows.

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

I do not have a routine. I try to find some time to write between meetings, academic commitments and also family obligations (having five kids makes it difficult to have a routine).

I can write wherever I find the time: at home, on the train, in coffee shops, at the airport. Noise never disturbs me. On the contrary, it is a challenge to my concentration and I like challenges.

But, as everybody knows, the main issue in our profession is not to write but to read. Since my childhood I have always been a “compulsive” reader, a “reading addict”, forgetting everything when having in my hands a book or a newspaper. One of the privileges of our profession is the duty of staying updated: experiencing ideas flowing from reading as the basis for our writing is one of the activities that is most similar to contemplating the mystery of nature and of human life.

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

I love reading J.H.H.Weiler, Armin Von Bogdandy, Bruce Ackermann, Bruno de Witte, Ran Hirschl, Sabino Cassese, Jan Wouters, and among my Italian colleagues Andrea Morrone and Nicolò Zanon.

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?

I owe a lot to my two first mentors, Prof. Giovanni Grottanelli de Santi and Prof. Gianfranco Mor. Prof. Giovanni Grottanelli de Santi’s Introduction of Constitutional Law (1982) has been very important for his realistic approach to the basic principles of public law, which connected constitutional law with administrative law, the latter as the natural development of the former.

The Division of Powers by Prof. Giovanni Bognetti, has always been a source of inspiration for its deep comparative perspective.

Several essays by Prof. E.W. Böckenförde in his book Staat, Gesellschaft, Freiheit have been the basis of my first full course in constitutional law, back in the eighties. I used to start my classes exploring with my students his critique to the Declaration of the Rights of Man and of the Citizen. His writings on the role of constitutional courts in the protection of rights have anticipated the present debate on judicialization.

Finally, let me mention two wonderful German novels: Michael Kohlhaas by Heinrich Von Kleist and Die Letze am Schafott by Gertrud von Le Fort: both of them describe man’s struggle and failures in pursuing justice.

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

The future of constitutionalism in its links to democracy as a device for limiting and controlling the exercise of political power is certainly a key question for our contemporary debate. How do constitutional principles face the problem of making democracy “sustainable”? Moreover, how can we meet the needs of future generations?

The relationship between law and science is also a fascinating field of research, which raises very important questions. How can scientific knowledge interact with legal decisions? What is the impact of scientific progress on our legal systems? These are open questions that need to be further explored.

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Published on May 11, 2018
Author:          Filed under: Reviews
 

Challenges for the Constitutional Court and Democracy in Albania

–Prof. Dr. Aurela Anastasi, Professor of Constitutional Law, University of Tirana; Fulbright Research Scholar, Boston College Law School

The justice system in Albania is going through a major reform to ensure the independence of the judicial system. The constitutional amendment adopted by the Parliament in 2016 established various measures and created several new institutions aimed at combating corruption in the judiciary, as well as re-establishing public trust and confidence in its institutions. This whole process—from the drafting and approval of the amendment all the way up to its implementation—has faced various challenges.

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Published on May 9, 2018
Author:          Filed under: Developments
 

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 Constitutional Court in Latvia will examine the constitutionality of the education reform aimed at switching to Latvian as the sole language of instruction at school.
  2. The Constitutional Court in Gabon dissolved the national parliament and called on the government to step down for failing to organize twice-delayed elections.
  3. The Supreme Court in Pakistan reserved its decision in the contempt case against the federal privatization minister after both sides completed their arguments.
  4. The Constitutional Court in Uganda ordered that the corruption trial of two businessmen that was stayed five years ago should resume before the Anti-corruption court.
  5. The Supreme Court in Finland denied the prosecution’s request to appeal in sexual abuse of 10-year-old.
  6. The Constitutional Court in Slovenia rejected complaints by the Slovenian central bank and the European Central Bank with regards to the seizure of Banka Slovenije data in 2016.
  7. The Constitutional Court in Romania ruled that the changes to the referendum law are constitutional.
  8. The Supreme Court of Israel backed increasing tax burden on the multinational research and development units in Israel.
  9. The Supreme Court in California ruled in favor of the gig workers.
  10. The Constitutional Court in Kosovo ruled that parliament’s ratification of a border demarcation deal with Montenegro was done legally.
  11. The Supreme Court in Chechnya will hear an appeal in the case of a prominent human rights defender who has spent nearly four months in detention on drug charges that associates say were fabricated.
  12. The Supreme Court in India warned that the Taj Mahal is turning brown and green due to pollution and neglect.
  13. The Supreme Court in the United Kingdom reserved its decision in the “gay cake” case.

In the News

  1. The Romanian President announced that he will send the justice laws redefining the magistrates’ status and responsibilities to the Constitutional Court and the Venice Commission for analysis.
  2. An independent selection committee designated to appoint a new Constitutional Court judge in Indonesia called on Indonesians with extensive knowledge of constitutional law to participate in the selection process.
  3. The Prime Minister of Gabon resigned after the constitutional court dissolved the parliament.
  4. The National Assembly in Armenia did not elect a new member of the Constitutional Court of Armenia.
  5. The United Kingdom ratified the Unified Patent Court Agreement.
  6. The Supreme Court President in Israel pleaded with the Prime Minister not to endanger democracy.
  7. The Israeli parliament approved a law empowering the country’s prime minister and defense minister to declare war.
  8. The Armenian Parliament failed to elect a new prime minister.
  9. The Rwandan Parliament summoned five ministers for failing to address citizen’s concerns.
  10. The Iraqi who threw shoes at the president Bush runs for the Iraqi parliament.
  11. The city of Phnom Penh banned protests outside Cambodia’s parliament ahead of the forthcoming national elections.
  12. The parliament in Chad approved a new constitution expanding the president’s powers.
  13. Police intervened in the opening of the Parliament of Sierra Leone.
  14. Dozens of women run in first parliamentary elections in Lebanon since 2009.
  15. The second ordinary session of the Jordanian parliament was discontinued by a royal decree.

New Scholarship

  1. Jonathan L. Marshfield, The Amendment Effect, Boston University Law Review (2018) (analyzing original data for evidence that formal constitutional amendment rates effect the practice of judicial review).
  2. Hualing Fu, John Gillespie, Pip Nicholson, William Edmund Partlett (eds.), Socialist Law in Socialist East Asia (2018 forthcoming) (offering a fresh theoretical approach to socialist laws which demonstrates how socialist law in China and Vietnam may shape the future of global legal development among developing countries).
  3. Melissa Curley, Björn Dressel and Stephen McCarthy, Asian Studies Review (2018) Competing Visions of the Rule of Law in Southeast Asia: Power, Rhetoric and Governance (offering insight into the social dynamics affecting how the rule of law in Southeast Asia is being interpreted by political actors and being contested and consolidated via governance practices).
  4. Stefanus Hendrianto, Law and Politics of Constitutional Courts, Indonesia and the Search for Judicial Heroes (2018) (evaluating different models of judicial leadership in Indonesia and the impact that individual chief justices can have on the development of constitutional courts) (20% Discount Available – enter the code FLR40 at checkout).
  5. Mark Elliott, Jason NE Varuhas, Shona Wilson Stark (eds.), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (2018) (investigating a unifying and disunifying framework for understanding public law in comparative perspective).
  6. Raphael Minder, The Struggle for Catalonia: Rebel Politics in Spain (2017) (analyzing what sets the Catalans apart from Spain, and how the separatist debate is playing out).
  7. Paul Yowell, Constitutional Rights and Constitutional Design: Moral and Empirical Reasoning in Judicial Review (2018) (arguing that in comparison to legislatures, the institutional capacities of courts are deficient and considering the implications of comparative institutional capacity for constitutional design).
  8. Jocelyn Stacey (ed.), The Constitution of the Environmental Emergency (2018) (recentering the debates in environmental law around the question of why governance under the rule of law is something worth having in the environmental context).
  9. Stefano Bartolini, The Political (2018) (analyzes the politics as the production and distribution of “behavioral compliance” as opposed to the view of politics as a distribution of values, an aggregation of preferences or a solution to social dilemmas).
  10. Antonio Floridia, From Participation to Deliberation: A Critical Genealogy of Deliberative Democracy (2017) (providing a history of the idea of deliberative democracy, analyzing its relationship with the earlier idea, and practices of participatory democracy in the 1960s and 1970s).
  11. Alice Valdesalici, Francesco Palermo and Annika Kress (eds.), Comparing Fiscal Federalism (2018 forthcoming) (investigating intergovernmental financial relations and the current de jure and de facto allocation of financial and fiscal powers in compound states from a comparative and interdisciplinary perspective).

Call for Papers and Announcements

  1. The Centre for Socio-Legal Studies at the University of Oxford organizes a debate “Catalonia: A Constitutional Debate” on 10 May 2018 in Oxford. Registrations must be completed online.
  2. The University of Zurich invites applications for a postdoctoral research position in Digital Democracy/Computational Social Science. The deadline for applications is 31 May 2018.
  3. The Ghent Rolin-Jaequemyns International Law Institute (GRILI) and the Leuven Centre for Global Governance Studies (GGS), together with Pax Christi Vlaanderen and Vredesactie organize an international conference “Parliamentary War Powers – National and European Perspectives” on 25 May 2018 in Brussels. Participation is free of charge, but registration is required.
  4. The European Neighbourhood Policy Chair at the Natolin campus of the College of Europe and the European Forum Alpbach welcome applications for the 6th ENP PhD Summer School “The European Neighbourhood Policy: Principled Pragmatism and the Quest for Resilience” on 15-31 August 2018. The deadline for applications is 10 May 2018.
  5. The South Dakota State University invites proposals for panels, individual presentations, and workshops for the “International Conference on Global Human Rights” on 4-6 October 2018 in Brookings. The proposals must be submitted no later than 18 May 2018 to SDStateGHRC@gmail.com.
  6. The University of Oslo invites applications for an assistant professor (postdoctoral fellow) in Political Science. The deadline for applications is 22 May 2018.
  7. The KU Leuven hosts the “15th International Conference on Social Sciences” on 13-14 July 2018 in Leuven. The deadline for a submission of abstracts is 23 May 2018.
  8. The University of Tartu, the Uppsala University, and the University of Kent announce a call for abstracts for the research workshop “Democracy in Reverse: Patterns of Autocratization in Eastern Europe and Eurasia” on 19 October 2018 in Tartu. The deadline for submitting abstracts is 15 May 2018.
  9. The University of Groningen invites applications for a PhD position “Privatization through Technology”. The deadline for applications is 31 May 2018.
  10. The Government and Law Research Group at the University of Antwerp organizes the 8th PhD Conference “Values and principles in multilevel governance: challenges and opportunities” on 25 May 2018. The deadline for registrations is 18 May 2018.
  11. The EURAC invites applications for the yearly Federal Scholar in Residence Program. The deadline for applications is 1 July 2018.

Elsewhere Online

  1. Iddo Porat, The problem with Iceland’s proposed ban on circumcision, EUROPP
  2. Jessica van der Meer, Paws for Thought: The High Court tackles PSPOs in a Landmark Judgment, UK Constitutional Law Association
  3. Alexander Horne, Dispute Resolution and Enforcement after Brexit, UK Constitutional Law Association
  4. Asanga Welikala, The perils of semi-presidentialism? The collapse of cohabitation and the design of executive power in Sri Lanka, Blog of the IACL, AIDC
  5. Scott Bomboy, Presidential subpoenas: An unsettled matter?, National Constitution Center
  6. Ozgur H. Cinar, Chronic human rights problems of Turkey during the EU accession process, openDemocracy
  7. Matt Ford, How the Supreme Court Could Rewrite the Rules for DNA Searches, The New Republic
  8. Tomohiro Osaki and Daisuke Kikuchi, Abe’s dream to revise Japan’s Constitution drifts farther from reach as long-running scandals chip away at support, japantimes
  9. Tim Gray, How Supreme Court Changed Course of Studio System 70 Years Ago, Variety
  10. Michael Reigner, Access to information and the fourth wave of rights, The Völkerrechtsblog
  11. Arianna Giovannini, England’s local elections 2018: the unusual case of Sheffield City Region’s mayoral contest, Democratic Audit UK
  12. Tobias Lock, Has Parliament Taken Charge of Brexit?, Verfassungsblog
  13. Terry Carney, Robo-Debt Illegality: A Failure of Rule of Law Protections?, AUPUBLAW
  14. Katharine Adeney, Divide to rule? Federal Innovation (and its lack) in South Asia, 50 Shades of Federalism
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Published on May 7, 2018
Author:          Filed under: Developments
 

The Rule of Law in Brazil: A Conceptual Challenge

Juliano Zaiden Benvindo, University of Brasília

 Reinhart Koselleck, one of the most prominent German historians of the twentieth century, once wrote that “conceptual change is generally slower and more gradual than the pace of political events.”[1] Time and experience are required for properly grasping the distinct nuances of a concept. Every concept – he says – both conditions political events and is affected by such extra-linguistic forces.[2] Particularly for constitutional lawyers, this premise means that we should be careful not to jump into general conceptualizations based on a single localized event, but, at the same time, acknowledge that “political and social history … can also be repeated in analogous structures.”[3] This premise has become an even greater challenge in times of rapid information and increasing movements of so-called “democratic decay.” It is no wonder that, in the last years, constitutional scholars have grappled with the difficulty of interpreting phenomena while the available concepts have seemingly not presented themselves enough to capture the complexity and the speed of changing realities. Concepts such as democracy and constitutionalism, multifaceted and controversial as they are, have been associated with various adjectives in order to provide a more direct overview of current events. “Stealth authoritarianism,”[4]  “abusive constitutionalism,”[5] “radical populism,”[6] constitutional dismemberment,”[7] “competitive authoritarianism,”[8] and “symbolic constitutionalization”[9] are just a few examples of this trend.

Amid a general bewilderment in the face of the many challenges to liberal principles and constitutional democracies around the world, Brazilian constitutional scholars, political scientists, and historians have also been struggling to comprehend the meaning of the sequence of events that have struck the country and their connection with some basic concepts. In a period of about five years, Brazil: 1) experienced the largest popular protests in recent history, which, in the end, became an unfocused movement ripe for co-option by traditional sectors of society; 2) elected the most conservative Congress ever since the end of the dictatorship; 3) endured a traumatic impeachment of President Dilma Rousseff; 4) saw the rise of an unelected President who is both highly unpopular and charged with involvement in a set of corruption schemes; 4) had the Speaker of the House and some other influential political figures arrested for corruption charges (many others are still under trial); 5) got used to a powerful, though also dysfunctional, Supreme Court exerting a moralizing role in politics; 6) and, on April 5, had ex-President Lula, the most popular and charismatic political leader in the country and a strong contender in the next national elections, surrender to police to start serving a 12-year prison sentence. For a country which was until recently seen as a success story in Latin America — The Economist, for example, had Brazil on the cover in 2010 with the title Brazil takes off— these many developments cause a mixture of perplexity and disillusionment.

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Published on May 2, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

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

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

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

Developments in Constitutional Courts

  1. The Supreme Court of India concluded that Electricity Regulatory Commissions must have a member with experience before the judiciary, be it as judge or as practitioner.
  2. The Supreme Court of Canada held that children’s views must be considered when deciding child-abduction-related international cases.
  3. The Supreme Court of Canada upheld New Brunswick regulation limiting the amount of spirits and beer that can be introduced into the Province, based on the principle of regional diversity.
  4. The UK Supreme Court declined to hear a challenge against a Court of Appeal’s decision that denied the request of a terminally-ill toddler’s parents to take the kid to Rome for further treatment.
  5. The US Supreme Court struck down a provision that required the compulsory deportation of immigrants convicted of some ‘crimes of violence’.
  6. The Constitutional Court of Malta rejected the Nationalist Party’s claim according to which the Electoral Commission does not have authority to investigate and decide infractions to party finance regulations.
  7. The US Supreme Court ruled that foreign corporations are immune for violations of Human Rights under the Alien Tort Statute.
  8. The Constitutional Court of South Africa ordered the Judicial Services Commission to disclose the discussions that led to the appointment of several judges in western Cape.
  9. The Russian Supreme Court upheld the conviction against opposition leader Alexei Navalny and his brother, despite an European Court of Human Rights decision that concluded that their right to a fair trial had been violated.
  10. The US Supreme Court heard oral arguments in the ‘Travel-ban case’.
  11. The Constitutional Court of Slovakia declared that freezing the salaries of several public officials is unconstitutional.
  12. The Constitutional Court of Ukraine annulled an act that establishes the requirements for conducting referenda.
  13. The Peruvian Constitutional Tribunal ordered the release from prison of former President Ollanta Humala and his wife Nadine Heredia.
  14. The Constitutional Court of Germany clarified the indirect effects of equality in private law relations, and considered that the stadium-attendance ban imposed on the complainant did not infringe the Basic Law.

In the News

  1. India’s Cabinet passed a Criminal Law Ordinance establishing death penalty for child’s rapists and increasing the punishment for women’s rapists.
  2. Florida’s Constitution Revision Commission introduced eight amendment proposals to the state constitution, in order to be considered in the forthcoming November 2018 general election ballot.
  3. The President of the Comoros, Azali Assoumani, suspended the Constitutional Court claiming that the impossibility of appointing all its members, has produced a state of institutional blockade.
  4. The Israeli Ministerial Committee for Legislation is set to vote on a bill that allows the Knesset to override decisions issued by the Supreme Court.
  5. The Cuban National Assembly appointed Miguel Díaz-Canel as new President of Cuba.
  6. Political stalemate over the need to reform the national referendum act persists in South Korea between opposition parties and the governmental coalition. President Moon Jae-in expressed concerns over the Assembly’s failure in passing said changes.
  7. Main political opposition forces in Turkey seek to forge an alliance to choose a unified presidential candidate to compete against President Erdoğan in the next presidential elections.
  8. Nicaraguan President, Daniel Ortega, reversed several changes proposed to the social security system, amidst popular demonstrations.
  9. The Vice-President of India and chairman of the Upper House of Parliament, Venkaiah Naidu, criticized the impeachment claim filed against the Chief Justice of the Supreme Court.
  10. The French National Assembly passed new legislation tightening asylum-related regulations.
  11. Mario Abdo-Benítez was elected as new President of Paraguay.
  12. Armenian Prime Minister, Serzh Sargsyan, resigned to his post after days of protests and criticisms for his long tenure as PM.
  13. The UK House of Lords voted in favor of keeping the EU Charter of Fundamental Rights after the UK leaves the European Union.
  14. The US District Court for the District of Columbia found that the government’s termination of the Deferred Action for Childhood Arrivals Program (DACA) was arbitrary.
  15. The President of the Constitutional Court of Turkey, Zühtü Arslan, said that the Court’s rulings are binding for all judges as a response to a local court’s decision that refused to follow an order to release two jailed journalists.
  16. According to a recent poll, 61% of interviewees disagree with PM Abe’s proposals to amend the Japanese Constitution.
  17. The Prime Minister of Scotland, Nicola Sturgeon, declared that rejecting a deal with the UK over post-Brexit powers, was in the national interest of Scotland.
  18. The Prime Minister of Barbados, Freundel Stuart, set May 24, 2018 as the date for next elections, after criticisms advanced by opposition forces due to his delay in doing so.
  19. The Judiciary Committee of the Nigerian Senate will determine whether President Muhammadu Buhari breached the Constitution when he agreed on purchasing military aircrafts to the US without prior consultation to the National Assembly.
  20. The North Korean leader Kim Jon Un and his South Korean counterpart Moon Jae-in met in the demilitarized zone to initiate a historic summit in which they signed a pledge to end war between the two nations.
  21. The President of Romania, Klaus Iohannis, publicly called for PM Viorica Dancila’s resignation in the wake of her support to move the Romanian embassy in Israel to Jerusalem.
  22. Indu Malhotra was sworn in as new Justice of the Indian Supreme Court, making her the first woman from the Bar to achieve this position.
  23. The President of Armenia, Armen Sarkissian, nominated Emil Babayan as new judge of the Constitutional Court.

New Scholarship

  1. Kim Lane Scheppele, Autocratic Legalism, The University of Chicago Law Review (2018) (exploring the paths taken by legalist autocrats to consolidate power, and suggesting some strategies to stop them)
  2. Roni Mann, Non-ideal theory of constitutional adjudication, Global Constitutionalism (2018) (advancing a non-ideal theory for constitutional courts to decide institutionally hard cases, that is, cases where deciding in line with what is constitutionally right may provoke a backlash coming from the elected branches of government or the public)
  3. Robert Böttner, The size and structure of the European Commission: legal issues surrounding project teams and a (future) reduced College, European Constitutional Law Review (2018) (analyzing the introduction of the so-called ‘project teams’ to the European Commission structure, in light of its compatibility with the Commission’s organizing principles)
  4. Rosalind Dixon, Functionalism and Australian Constitutional Values, in Rosalind Dixon (ed.), Australian Constitutional Values (2018) (claiming that despite the lack of any express statement of constitutional values in the Australian Constitution, courts have resorted to moral and political values to make constitutional decisions)
  5. James A Sweeney, The Elusive Right to Truth in Transitional Human Rights Jurisprudence, International & Comparative Law Quarterly (2018) (developing a comparative account of the scope of the duty to find truth in transitional scenarios, and arguing that underlying values of human rights treaties can provide a basis for a right to truth)
  6. Melissa Crouch, Dictators, Democrats, and Constitutional Dialogue: Myanmar’s Constitutional Tribunal, International Journal of Constitutional Law (forthcoming 2018) (proposing an explanation to identify the internal factors –such as the influence of elected officials and military actors– that have led to the actual operation of Myanmar’s Constitutional Tribunal)
  7. David Landau, Populist Constitutions, The University of Chicago Law Review (2018) (examining the relationship between constitutional change and populism, and claiming that populists use constitutional change to deconstruct the previous liberal order, to create a new substantive project and to consolidate power in the hands of the ruler)
  8. Ingrid Leijten, Core Socio-Economic Rights and the European Court of Human Rights (2018) (examining the idea of core rights protection in constitutional and international law, and linking it to the protection of socio-economic rights under the European Convention on Human Rights)
  9. Mathias Siems, Malicious legal transplants, Legal Studies (2018) (explaining the reasons behind the existence of malicious legal transplants and indicating how they can be prevented)
  10. Günter Frankenberg, Comparative Constitutional Studies. Between Magic and Deceit (2018) (contending that each constitution has an interesting story to tell, and offering a different approach to comparative constitutional law which is based on finding and conveying particular constitutional narratives)
  11. Michel Rosenfeld, Judicial Politics versus Ordinary Politics: Is the Constitutional Judge Caught in the Middle? in Christine Landfried (ed.), Judicial Power (forthcoming 2018) (suggesting that judicial politics is distinguishable from ordinary politics, but recognizing that both are closely intertwined and may overlap in some situations)
  12. Anthea Roberts, Paul B. Stephan, Pierre-Hugues Verdier & Mila Versteeg (eds.), Comparative International Law (2018) (entertaining the idea that international law is not a monolithic whole but rather that its interpretation and application varies among states, thus opening the door for meaningful international-law-based comparisons across countries)

Calls for Papers and Announcements

  1. Cybersecurity Research Center – The CyberLaw Program, Hebrew University and The Center for Cyber Law and Policy, Haifa University, invite contributions for their forthcoming conference on “AI: Law and Policy”. Submissions should be sent by June 1, 2018
  2. The Anti-Corruption Law Interest Group of the American Society of International Law (ASIL), Sciences Po Law School, and the Zicklin Center for Business Ethics Research of the Wharton School of the University of Pennsylvania invite paper proposals for their conference on “The Transnationalization of Anti-corruption Law”, to be held on 6-7 December, 2018. The deadline for papers’ submission is July 23, 2018.
  3. The American University Washington College of Law (AUWCL) Program on Information Justice and Intellectual Property (PIJIP), calls for panels and papers to the Fifth Global Congress on Intellectual Property and the Public Interest, which will take place in September 2018. The deadline for submissions is May 15, 2018.
  4. The Faculty of Law of the University of Gambia presents the inaugural number of the Gambia Law Review, and invites interested scholars to check the forthcoming call for papers for the next issue.
  5. The Center for Global Constitutionalism at WZB convenes its Berlin Colloquium on Global and Comparative Public Law, which will be held during the summer semester of 2018.

Elsewhere Online

  1. Yash Ghai, Perils of allowing politicians to push Constitution amendment, The Star
  2. Johannes Karreth & Jaroslav Tir, The international community struggles to end civil wars. How can international organizations help? OUPblog
  3. Tavleen Singh, Saving democracy, really? The Indian Express
  4. Jan-Werner Müller, ‘Democracy’ Still Matters, The New York Times
  5. Everaldo Lamprea & Daniela García, Recent Trends in Climate Change Litigation: Colombia’s Amazon and Juliana v U.S, OxHRH Blog
  6. Adnan Rasool, Pakistan’s activist Supreme Court endangers a fragile democracy, The Conversation
  7. Keith E. Whittington, I.P. Congressional War Power, Lawfare
  8. Marty Lederman, On the so-called “Global Injunction” question in the Travel Ban case, Balkinization
  9. Joe McIntyre, What is Administrative Law About? Power, Rights, and Judicial Culture in Australia, AUSPUBLAW
  10. Wojciech Sadurski, Bad Response to a Tragic Choice: the Case of Polish Council of the Judiciary, Verfassungsblog
  11. Michela Palese, How online quizzes could improve information during election campaigns: lessons from Germany, The Constitution Unit
  12. Samuel Moyn, How the Human Rights Movement Failed, The New York Times
  13. Marina Brilman, Environmental Rights and the Legal Personality of the Amazon Region, EJIL: Talk!
  14. Patrick Utz, Austrian Federal Reform Stops Before It Starts, Centre on Constitutional Change
  15. Eleni Frantziou, Mangold Recast? The ECJ’s Flirtation with Drittwirkung in Egenberger, European Law Blog
  16. Violeta Beširević, The Draft Amendments to the Serbian Constitution: Populism before Judicial Independence, Verfassungsblog
  17. Alexander Noyes, In Africa, presidential term limits are working, The Washington Post
  18. Maria Belén Saavedra, Claudia Sarmiento, Diego Garcia-Ricci, Eleana Rodriguez, Christopher Campbell-Duruflé, Olimpia Boido, Carlos Herrera Vacaflor, Mercedes Cavallo, & Esteban Vallejo-Toledo, Chile: Constitutional Court abortion decision – now in English! reprohealthlaw blog
  19. Mark Bennett, The Ever-Expanding “Emergency” Exception: Syria, the War Powers Convention, and the Bypassing of Prior Parliamentary Debate, U.K. Const. L. Blog
  20. Nanako Tamaru, Five Strategies for Increasing Women’s Influence in Constitution Making, Blog of the IACL, AIDC
  21. Alan Greene, Ireland v the UK and the Hooded Men: A Missed Opportunity? Strasbourg Observers
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Published on April 30, 2018
Author:          Filed under: Developments
 

I-CONnect Symposium on “Constitutional Boundaries” — Judging Constitutional Conventions

[Editor’s Note: This is the seventh and final entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, the third is available here, the fourth is available here, the fifth is available here, and the sixth is available here.]


Farrah Ahmed, Associate Professor and Associate Dean of Research, Melbourne Law School, Richard Albert, Professor of Law, The University of Texas at Austin, and Adam Perry, Associate Professor in the Faculty of Law and Garrick Tutor and Fellow at Brasenose College, University of Oxford

In this post, we reproduce the abstract and the Introduction to our paper entitled “Judging Constitutional Conventions,” forthcoming in the International Journal of Constitutional Law (ICON). An earlier and unrevised version of this paper is available here. For ease of reading, we have left out the many footnotes that otherwise appear in the Introduction.

Abstract: The study of constitutional conventions is anchored in three assumptions that have so far remained largely unchallenged: that there is a shared “Commonwealth approach” to constitutional conventions; that Commonwealth courts will recognize and employ conventions but never enforce them; and that conventions are always distinguishable from rules of law. We overturn each of these assumptions in this Article. We argue that there is no such shared “Commonwealth approach” to the treatment of constitutional conventions, that Commonwealth courts do, in fact, enforce conventions, and that constitutional conventions have crystallized into law in a major Commonwealth jurisdiction. These insights disrupt much of what is foundational in the study of constitutional conventions.

Introduction

The late O. Hood Phillips isolated the essential characteristic of constitutional conventions in a simple phrase: “These are not a matter for the courts at all.” Constitutional conventions are commonly described as obligatory but non-justiciable rules that are central to the functioning of government. The scholarly literature takes for granted that there exists a “Commonwealth approach” to how courts understand and in turn treat conventions. Adrian Vermeule, for example, observes that the Commonwealth approach—which “holds that while courts may and should recognise conventions, they may not and should not enforce them”—has “achieved consensus in the United Kingdom and the Commonwealth.” There is a similar consensus that conventions are always distinguishable from rules of law.

In this Article we show that this dominant view is mistaken. We demonstrate, first, that Commonwealth courts go beyond simply recognizing the existence of conventions to employ them in legal reasoning towards the resolution of a dispute. This shows that scholarly claims and their derivative implications about a consistent “Commonwealth approach” to conventions are mistaken. Second, and more significantly, we show that courts do what the dominant view says they cannot: they enforce conventions to resolve legal disputes before them. Finally, we show that we may have found of one of the “holy grails” of Commonwealth constitutional scholarship: a convention that has crystallized into law—something that has until now eluded public law scholars. Future scholarship on constitutional conventions will have to confront our evidence.

We focus on high courts in Canada, India, and the United Kingdom—three Commonwealth jurisdictions with historically shared legal norms around conventions—because their constitutional case law illustrates the range of options available to courts when engaging with conventions. To our knowledge, the recent cases at the core of our analysis have yet to be examined with the comparative and theoretical perspectives we take in this Article. We focus specifically on Miller v. Secretary of State for Exiting the European Union (2017) at the UK Supreme Court, the National Judicial Appointments Commission case (2015) and earlier related controversies at the Indian Supreme Court, as well as the Canadian Supreme Court’s Patriation Reference which is thought to represent—incorrectly, we show—the Commonwealth approach to conventions in courts.

We begin, in Part II, with an inquiry into the ways courts conceivably could engage with conventions. We distinguish specifically among three modes of engagement—recognition, employment and enforcement—as well as the variations within each in order to set the terms for Part III, where we review how Commonwealth courts actually do engage with conventions. We show that high court judgments in Canada, India and the United Kingdom together demonstrate all three of these modes of judicial engagement, suggesting that Commonwealth courts engage with conventions in ways that have until now been undertheorized and underexplored in the scholarly literature. Building on our discussion in Parts II and III, we suggest in Part IV that India may provide the first example of the crystallization of a constitutional convention into law.

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Published on April 29, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium on “Constitutional Boundaries” — Public Office and Public Law

[Editor’s Note: This is the sixth entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, the third is available here, the fourth is available here, and the fifth is available here.]


Janet McLean, Professor of Law, The University of Auckland

In the West we often talk quite glibly about the democratic underpinnings of administrative law. In this project I investigate what English administrative law looked like when property was the basis of political authority and how the administrative apparatus, and the norms which governed it, changed in the transition to democracy as the legitimate source of authority. Even up until the early nineteenth century, property was considered to be a source of independence and the basis for stability and legitimate political interest. Only propertied men were free; sustaining property interests sustained societal and economic order.

Prior to the ascension of democracy as the source of legitimacy and authority, the idea of independent public office had a central part to play in the legitimacy and accountability frameworks of the political and administrative systems. Both political and administrative officials held public office. What was to become a core distinction between office-holders able to exercise legitimate political authority and the administrative office holders of the civil service had its origins in statutes denying certain of the Crown’s placemen from holding seats in Parliament.

Public office was itself considered a variety of property, and many offices were held “for profit”. Particularly in the period between 1780 and 1850 both the courts and the legislature were engaged in defining and placing limits on the nature of that property interest. Such limitations were intended to preserve the property interest from corruption by appealing to the values which the property interest, properly understood, was intended to support–namely, stability and independence, personal accountability and public trust. The legislature undertook extensive inquiries, as well as piece meal legislative reform. Judges identified officials whose independence required protection, interpolated ideas of public trust into certain contractual frameworks, helped supervise conflicts of interest, expressed concerns about the sustainability of certain public services and controlled certain delegations.

Of course the story has numerous layers because neither the legislature nor the courts were themselves immune from corruption, venality and the degradation of the property interest. What is interesting is to identify where exactly the lines between propriety and corruption were drawn, even given these complications. Particularly interesting is the way in which ideas about improper conflicts of interest changed over the period.

Suggested Citation: Janet McLean, I-CONnect Symposium on “Constitutional Boundaries” — Public Office and Public Law, Int’l J. Const. L. Blog, Apr. 28, 2018, at: http://www.iconnectblog.com/2018/04/i-connect-symposium-on-constitutional-boundaries-public-office-and-public-law

 

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Published on April 28, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium on “Constitutional Boundaries” — The Social Dimension of the Rule of Law

[Editor’s Note: This is the fifth entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, the third is available here, and the fourth is available here.]


Jeff King, Professor of Law, University College London

One question about constitutional boundaries relates to whether constitutional principles require the state to take regulatory action in the private sphere.  An exploration of that idea is sometimes found in discussions of constitutional social rights.  Less has been said about it in connection with the rule of law concept. In this post, I outline some of the thinking set out in my paper for the constitutional boundaries workshop, which has led me to conclude that the best conception of the rule of law would require the provision of a legally structured welfare and regulatory state.

Anglo-American jurists in the post WWII period have tended to embrace a quite narrow conception of the rule of law. The idea, described as ‘justice as regularity’ by John Rawls and as a ‘formal’ account by Joseph Raz,[1] is that the rule of law is a political ideal that imposes obligations on states to (1) make clear law; (2) do so in a transparent and consistent manner; (3) apply it consistently to all persons without distinction, and especially to public officials; (4) adjudicate all legal disputes fairly before independent and impartial courts; and (5) secure access to such courts. In brief: the rule of law is here concerned with how any given law is made and applied, and the only demands on the substance of the law is that it be clear and prospective.

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Published on April 27, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium on “Constitutional Boundaries” — Civil Society

[Editor’s Note: This is the fourth entry in our symposium on “Constitutional Boundaries.” The introduction to the symposium is available here, the first entry is available here, the second entry is available here, and the third is available here.]


N.W. Barber, Professor of Constitutional Law and Theory, Trinity College, Oxford University

The paper discusses the boundary between the public and the private, the points at which the state ends, and the private realm begins.  Civil society is presented as the interface between the public and the private: the rules and, around those rules, the dispositions that define the relationships between the state and other social institutions – and which, in so doing, shape both the state and these private entities.

The paper provides an account of civil society that returns to its classical roots.  Recent models of civil society have tended to focus on charities, pressure groups, and, sometimes, religions. However, earlier models, in particular the foundational account found in the work of Hegel, placed families and corporations at its heart.  Whilst charities and pressure groups are elements of civil society, family and forms of economic relation are of central importance to its operation.  The paper maps a crucial distinction in constitutional theory.  This division – between the public realm of the state and law, on the one hand, and private realm of the economic and social, on the other – is sometimes presented in categorical terms: as closed systems that interact in limited ways.  But even if a sharp divide can be drawn in the abstract, the division, between the public and the private, is less clear – and often less important – when applied to reality. It is argued that whilst the defining point of private bodies is almost always different from that of the state, their capacity to exercise authority and to have an existence outside of law renders them structurally similar in some respects to the state.    It is this combination of difference of purpose combined with similarity of form that gives the appearance of tension between the public and private, suggesting, perhaps, that we must pick sides between the two.

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Published on April 26, 2018
Author:          Filed under: Analysis