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Blog of the International Journal of Constitutional Law

The Federal Intervention in Rio de Janeiro: Militarization of Public Security, Expansion of Military Justice and Impunity for Human Rights Violations

Andrés Del Río, Institute of Education of Angra dos Reis (IEAR) – Federal Fluminense College (UFF), Juliana Cesario Alvim Gomes, State University of Rio de Janeiro

In February 2018, the Brazilian Federal Government ordered a federal security intervention in the State of Rio de Janeiro, allegedly to respond to a crisis of violence. In this context, police forces and the prison system of the state have been placed under the command of a military General invested with broad authority to restore order.

Violence in Rio de Janeiro, however, has actually increased since the intervention began. According to the Intervention Observatory report, the facts are alarming: from February 16 to April 15, 1502 shootings were reported, which resulted in 284 deaths and 193 people injured.[1] In the previous period, from December 16 to February 15, 1299 such events were reported. Crossfires also produced 12 massacres and 52 casualties. In the same period in 2017, there were 6 massacres and 27 deaths.[2]

Additionally, there is a great risk that the increasing violence will consolidate into impunity, in violation to the Brazilian constitution and under the Supreme Court’s eyes. The debate revolves around the expansion of the jurisdiction of military justice (in opposition to the ordinary justice) to prosecute crimes involving civilians – be they defendants, or victims of human rights violations committed by members of the armed forces.

The 1988 Brazilian constitution succinctly states that the military justice system “is responsible for prosecuting military crimes as defined by law.” What military crimes are and what will thus fall under the jurisdiction of military justice is defined by statutory law. Two pieces of this legislation are direct legacies of the dictatorship of 1964: the Military Criminal Code and the Code of Military Criminal Procedure.

The former establishes, for example, that crimes committed by civilians “against military institutions” are to be considered “military crimes” and thus fall under the responsibility of military justice (composed for the most part of military personnel who are on active duty and have no formal legal education).

This authoritarian system of military justice has never been altered by the democratic order started with the democratic Constitution of 1988, either by legislative or judicial means. Although an appeal challenging the jurisdiction of military justice to prosecute civilians (ADP 289) was submitted in 2013, it has languished on the docket of the Brazilian Supreme Court without any decision.

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Published on July 18, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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

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

Developments in Constitutional Courts

  1. The French Constitutional Council ruled that a farmer who aided migrants crossing France’s border with Italy was immune from prosecution.
  2. The Constitutional Court of South Korea banned private detective agencies.
  3. The Constitutional Court of South Korea is reviewing a civil code article that designates animals as property.
  4. In Uganda, the constitutionality of a controversial social media tax is being challenged before the Constitutional Court.
  5. The Indian Supreme Court is set to hear petitions regarding anti-gay laws.

In the News

  1. A public referendum has been called in Benin to review the constitution.
  2. In the Philippines, a new constitutional draft has been submitted to the president.
  3. The European Parliament voted down a copyright bill.
  4. The German Legislature announces plans to prevent alleged violations of the EU General Data Protection Regulation (GDPR).
  5. A German court held that Carles Puigdemont can indeed be extradited to Spain.

New Scholarship

  1. Matthew Seligman, Constitutional Politics, Court Packing, and Judicial Appointments Reform (2018) (examining the constitutional politics of the appointments process in an era of rising partisanship and constitutional hardball through the lens of game theory)
  2. Eric M.Adams, Judicial Agency and Anxiety Under the Canadian Bill of Rights: A Constitutional History of R V Drybones, National Journal of Constitutional Law (forthcoming 2018) (arguing that the Canadian Charter of Rights and Freedoms arrived not because the Bill of Rights failed as has so often been argued, but rather because the Bill of Rights succeeded in altering irretrievably, although not uniformly, Canada’s constitutional imagination)
  3. Jean-Sylvestre Bergé, Stephane Grumbach and Vincenzo Zeno-Zencovich, The ‘Datasphere’, Data Flows Beyond Control, and the Challenges for Law and Governance, 5 European Journal of Comparative Law and Governance (2018) (considering the need and the difficulty of regulating the Datasphere and the different approaches followed on both sides of the Atlantic)
  4. Adolfo Giuliani, What is Comparative Legal History? Legal Historiography and the Revolt Against Formalism, 1930-60 in A Masferrer, KÅ Modéer, and O Moréteau (eds), Comparative legal history (forthcoming, Research Handbooks in Comparative Law Series, Elgar, 2018) (arguing that to understand this new field of legal-historical studies, we need first to clarify how legal historiography has changed over time).
  5. Hermann-Josef Blanke and Ricardo Perlingeiro, The Right of Access to Public Information: An International Comparative Legal Survey (Heidelberg: Springer-Verlag GmbH Germany, 2018) (introducing a comparative study on access to public information in the context of the main legal orders worldwide)
  6. Jeremy Waldron, Judicial Review and Political Legitimacy (in Spanish: Control de Constitucionalidad y Legitimidad Política), 27 Núm. 1 – Chía, Colombi (2018) (analyzing the relationship between judicial review of legislation and the principle of political legitimacy, claiming that judicial review is not devised to produce political legitimacy, and suggesting some alternatives to mitigate the ‘democratic difficulty’ implied in judicial review)
  7. Robin Fretwell Wilson and Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, in The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)) (exploring the limits of the broad and constitutionally recognized grant of parental power and documents the veritable kaleidoscope of exemptions for practices that expose children to real and present harm)
  8. Dagmar Schiek, On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?, Journal of Discrimination and the Law (forthcoming) (discussing three ECJ rulings which similarly failed to acknowledge intersectional discrimination, thus inviting national courts to deny recognition and adequate remedies to claimants)
  9. Giuseppe Martinico, How can Constitutionalism Deal with Secession in the Age of Populism? The Case of Referendums, STALS Research Paper, 5/2018 (discussing the relationship between populism and constitutionalism)

Call for Papers and Announcements

  1. The Journal on Contemporary Issues of Law welcomes submissions for its new volume.
  2. The International Court of Justice has issued a call for papers for a workshop on “The International Court of Justice and Chagos,” to be held October 19-20, 2018, at the University of St. Gallen.
  3. The Indian Review of Corporate and Commercial Laws (IRCCL) invites blog articles on current issues relating to corporate law, arbitration, anti-trust, taxation, insolvency law, and international trade law.
  4. LUMS Law Journal (LLJ) announces a call for papers for its fifth volume.
  5. The Dennis J. Block Center for the Study of International Business Law will sponsor a Scholars’ Roundtable on November 16-17, 2018 at Brooklyn Law School.
  6. The Innovation Center for Law and Technology at New York Law School and the Center on Law and Information Policy at Fordham University School of Law announce a call for submissions for the Second Northeast Privacy Scholars Workshop at Fordham Law School on November 9, 2018.
  7. Alberta University’s Centre for Constitutional Studies is seeking expressions of interest Editor-in-Chief for its journal, the Review for Constitutional Studies/Revue d’études constitutionelles.

Elsewhere Online

  1. Supreme Court polarization is not inevitable — just look at Europe, The Conversation
  2. Mark Joseph Stern, A Post-Roe Road Map, Slate
  3. Curtis Doebbler, Immigrants Need Not Apply, Jurist
  4. Monika Nalepa, Poland may forcibly ‘retire’ dozens of Supreme Court justices, The Washington Post
  5. Jean-Paul Oury, What place should the environment have in the constitution?, European Scientist
  6. Is Ivory Coast’s president tightening his grip on power?, Deutsche Welle
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Published on July 16, 2018
Author:          Filed under: Developments
 

Meet the Team that Brings You “What’s New in Public Law”

Richard Albert, The University of Texas at Austin

We published the very first edition of “What’s New” over four years ago on January 5, 2014. Its format today is largely unchanged, and its purpose has remained the same: to update our readers on developments in public law around the world from the previous week. Developments include news from constitutional and supreme courts, new scholarship in public law, calls for papers, and highlights from around the blogosphere.

As we begin the second half of 2018, our readers have surely noticed the new names identified as authors of our weekly “What’s New” feature.

In this post–which doubles as a very big THANK YOU to our “What’s New” authors–we invite you to get to know the members of our fabulous team. They are the ones who produce the weekly reports, and they are the ones to whom we owe immense thanks for the great service they do for the field. Their bios are listed below.

As a reminder, we welcome your submissions of items to include in “What’s New.” Please send them by email to contact.iconnect@gmail.com. We require weblinks for all submissions; we do not upload documents, whether in PDF, Word or otherwise.

Mohamed Abdelaal is an Assistant Professor of Law at Alexandria University Faculty of Law in Alexandria, Egypt and Adjunct Professor of Law at the University of Indiana Robert H McKinney School of Law in Indianapolis, Indiana, USA. He focuses his teaching and scholarship on the areas of Constitutional Law, Administrative Law, Comparative Law, and Islamic Law. Abdelaal has published widely on constitutional law and comparative law and he served as a presenter and panelist in several law conferences and workshops in USA. Meanwhile, he is licensed to practice law in Egypt and he is admitted as a certified arbitrator under the Egyptian Law. He is also a permanent member of the Egyptian American Rule of Law Association (EARLA), Washington D.C., and has been invited for three consecutive years (2012-2013-2014) to serve as an Egyptian expert to draft the Rule of Law Index Report sponsored by the World Justice Project (WJP).

Davide Bacis is a PhD candidate in Constitutional Law at the University of Pavia and he is currently a teaching assistant at Bocconi University in Milan, where he graduated in 2015. His current research is mainly focusing on the development of the right to the truth from both a national and a supranational perspective. His research interests also include the protection of human rights at a supranational level, human rights violation in the context of counter-terrorism measures and illegal immigration, on which he published an essay in 2017.

Vicente F. Benitez R. is a J.S.D. student at New York University (NYU). He holds an LL.M in Legal Theory from NYU (as Arthur T. Vanderbilt Scholar 2016-2017), and a Master in Constitutional Law from La Sabana University (Colombia) where he is full-time Constitutional Law Professor. Vicente has been visiting professor at several Colombian universities, and constitutional advisor to the Colombian Public Ministry and to the Colombian Judiciary. Vicente’s research interests focus on judicial politics, comparative constitutional law, and constitutional theory.  

Monica Cappelletti is a post-doctoral researcher in public comparative law in ASGARD, the EU Project, at Dublin City University (DCU). Her research deals with Data Protection issues in the Security and Surveillance Domains, focusing on the relationship between the protection of fundamental rights and policing activities. She is also an affiliated staff member of the DCU BREXIT Institute, and teaches International Human Rights Law. Her current research topics are data protection rights, data protection in public sector (healthcare and security/surveillance), human rights law, law and new technologies. A selection of her publications are available here.

Angélique Devaux is a French Qualified Attorney (Diplômée Notaire) at Cheuvreux Notaires in Paris, France, where she assists international clients in real estate transactions and estate planning. She began her international career in the UK as a French lawyer in a solicitors law firm, before working in a large firm of notaires for six years in Paris specializing in family law with cross-border issues, and then moving to the U.S for another six years. She is also an LL.M. American law graduate at Indiana University Robert McKinney School of Law, where she co-taught comparative law and has been giving lectures in French and European Law. She has authored several articles in comparative law, and essentially focuses her research on International Family Law, International Private Law (Conflict of Laws), Trusts and Estates, and Comparative Law.

Šimon Drugda is an MSt/MPhil student at the University of Oxford, Centre for Socio-Legal Studies (CSLS). He will soon begin doctoral studies in law at the University of Copenhagen. He holds degrees in Law from Comenius University in Bratislava (Bc.), Slovakia, and Nagoya University (LL.M.) in Japan. Simon spent a semester studying in Norway at the University of Bergen and won a Japanese govt scholarship as the only Master/PhD researcher in Slovakia for the year 2015. His research interests include judicial studies, socio-legal research, and electoral disputes. Simon is a co-editor of the Global Review project.

Chiara Graziani is a PhD student in Comparative Constitutional Law at the University of Genoa, Italy and she is Teaching Assistant at Bocconi University, Milan, Italy, where she graduated magna cum laude in 2016. Her main research interests are in the field of human rights, national security and counter-terrorism measures. However, from a comparative perspective, she also investigates other constitutional law-related topics, e.g. the constitutional implications of Brexit, on which she published an essay in 2017. Chiara spent study and research periods at the London School of Economics and Political Sciences, London, UK and at the University of Valencia, Spain.

Mauricio A. Guim is an S.J.D. Candidate and Presidential Fellow in Data Science at the University of Virginia School of Law. Prior to joining the S.J.D. Program at UVA, Mauricio was visiting scholar in the Inter-American Court on Human Rights. His research interests include Comparative Constitutional, Comparative Administrative Law, Judicial Politics in Domestic and International court and Empirical Legal Studies.

Gaurav Mukherjee is an S.J.D. candidate in Comparative Constitutional Law at the Central European University, Budapest (CEU), working under the supervision of Professor Renáta Uitz. His doctoral project concerns dialogic forms of judicial review in socioeconomic rights disputes in India, Kenya, Colombia, and South Africa. In 2017, Gaurav worked with the Hungarian Helsinki Committee on a proposed reform to include non-custodial sanctions in the Hungarian criminal law relating to petty offences. Gaurav is currently the Regional Correspondent for India at the Oxford Human Rights Hub. He has served on the editorial board of the Indian Journal of Constitutional Law in 2011-12, as the Notes Editor for the Jindal Global Law Review in 2009-10, as well as a consulting editor for LexisNexis Butterworths in 2013.

Nausica Palazzo is a PhD candidate in Comparative Constitutional Law at the University of Trento, and a Fulbright Fellow at the University of Michigan, Ann Arbor, for the a.y. 2017-2018. As to her work experience, she lectured at Bocconi University, Milan, on Constitutional Law, trained public bodies on anti-corruption law through Transparency International Italia, and worked as a lawyer. Her dissertation focuses on the allocation of social and tax benefits to non-marital relationships in Canada, U.S., and Europe. She published both in Italian and English on subjects related to Antidiscrimination Law, Comparative Constitutional Law, and Administrative Law.

Maja Sahadžić is a researcher, lecturer, and expert legal advisor. At present, she is a doctoral researcher at the Government and Law research group at the Faculty of Law, the University of Antwerp. Her research is titled “Constitutional asymmetry in multi-tiered multinational systems.” Her work experience includes earlier academic positions at the universities in Bosnia and Herzegovina, Croatia and the United States of America. She has also worked as a lawyer and journalist. So far, she has published over fifty books, book chapters and papers in journals and conference proceedings, within the field of constitutional law, international law, diplomacy, and security (the selection of publications available here).

Sandeep Suresh is a full-time faculty member at Jindal Global Law School (India). He taught Law of Tort and Criminal Procedure during the Fall Term of 2017-18 academic year. He completed his LL.M. (Comparative Constitutional Law) from Central European University, Budapest (Hungary) in June 2017. Prior the LL.M, he graduated B.A. (Hons.), LL.B (Hons.) from National Law University, Jodhpur (India) in 2015. In his research projects, he mainly focuses on judicial process, rights vs. duties debates, and separation of powers. He is also concerned with reforms in legal education and teaching pedagogy as well.

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Published on July 13, 2018
Author:          Filed under: Developments
 

Deadline July 15—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 July 11, 2018
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With Time Running Out for Agreement with EU, UK Calls for “Softer” Brexit

David R. Cameron, Professor of Political Science and Director of European Union Studies, Yale University

Two years have passed since British voters decided, by a 52-48 margin, to leave the EU. More than 15 months have passed since the UK informed the EU of its intention to leave. More than a year has passed since the negotiation of a withdrawal agreement began. In less than nine months the UK will leave. And in order for the member states and European Parliament to have sufficient time to review and approve the agreement prior to the exit date – March 29, 2019 – the negotiation must be completed by the European Council’s October 18 meeting, or its December meeting at the very latest.

In short, the Brexit clock is ticking and time is running out, raising fears in the EU, the British Parliament and the business community of a “no deal” outcome – no withdrawal agreement, no transition period until 2021, only the crash landing of the hardest possible Brexit at midnight on March 29, 2019. It was with that sense of urgency and fear, coupled with its continued frustration with the pace of the negotiation, that the European Council returned again to Brexit on June 29. And it was with that same sense of urgency and fear that the British government met last Friday at Chequers, the prime ministerial country house, to decide on the future economic relationship with the EU it will seek in the negotiation.

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

What’s New in Public Law

–Angélique Devaux, Cheuvreux Notaires, Paris, France, Diplômée notaire, LL.M. Indiana University Robert H. McKinney School of Law

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

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

Developments in Constitutional Courts

  1. Hong Kong’s top court ruled in favor of spousal visa for a British lesbian.
  2. France’s Constitutional Court ruled that helping illegal immigrant is constitutional because it falls under the fraternal principle.
  3. The Constitutional Court of Moldova declared unconstitutional a law imposing a fixed fine for failure to submit a tax invoice.
  4. Germany’s Constitutional Court ruled that law firms that are not organized as a German legal entity and which do not have their main seat in Germany cannot claim constitutional protection against police.
  5. Hungary’s Constitutional Court ruled that the Unified Patent Court Agreement (UPCA) is contrary to the Hungarian Constitution.
  6. South Africa’s Constitutional Court ruled that all surviving spouses of polygamous marriages under Islamic law are entitled to the benefits of a deceased spouse’s will.
  7. Bulgaria Administrative Court has recognized rights of a same-sex couple.
  8. The Caribbean Court of Justice declared that the mandatory death penalty in Barbados is unconstitutional.

In the News

  1. A Philippine committee completes draft on new constitution.
  2. The French Conseil d’Etat takes a position in favor of medically-assisted procreation for all women [Article in French].
  3. Ireland is about to hold a referendum about the role of women at home.
  4. Poland’s isolation deepens as Supreme Court law takes effect.
  5. The European Parliament has rejected a controversial copyright law.
  6. The President of the Ivory Coast plans to name a new government.

New Scholarship

  1. Ran Hirschl, Opting out of “Global Constitutionalism”, 12 Law & Ethics of Human Rights 1 (2018) (charting the contours of three aversive responses to constitutional convergence–neo-secessionism, nullification, and deference to local authority–and drawing on an array of comparative examples to illustrate the distinct logic and characteristics of each of these responses)
  2. Bosko Tripkovic, The Morality of Foreign Law, International Journal of Constitutional Law (forthcoming) (explaining the normative foundations of the use of foreign law in constitutional reasoning)
  3. Aurela Anastasi, Reforming the Justice System in the Western Balkans. Constitutional Concerns and Guarantees, Workshop No. 18, of the 10th World Congress of Constitutional Law (IACL-AIDC); 2018 SEOUL 18-22 June 2018 (analyzing the judicial reform process in the region of the Western Balkan)
  4. Mohamed Arafa, Islamic Criminal Law: The Divine Criminal Justice System between Lacuna and Possible Routes, 2 Journal of Forensic and Crime Studies 102 (Spring 2018) (discussing challenges to criminal law administration in Islamic states)
  5. Sarah C. Haan, The Post-Truth First Amendment, 94 Indiana Law Journal, Forthcoming (arguing that post-truthism presents a constitutional law problem that influence on First Amendment law)

Calls for Papers and Announcements

  1. The Faculty of Law in Rijeka issues a call for papers for its 2018 Rijeka Doctoral Conference to be held on 7 December 2018 in Rijeka (Croatia).
  2. The Faculty of Law at the University of Trier is looking for a research fellow (Wissenschaftliche(r) Mitarbeiter(in)) at the Chair for Private Law, Private International Law and Comparative Law (Prof. Dr. Jens Kleinschmidt, LL.M. (Berkeley)).
  3. The Melbourne Institute of Comparative Constitutional Law (Institute) issues a call for paper to develop the study of comparative constitutional law through exchange between leaders and emerging scholars in the field.
  4. The Journal of the Oxford Centre for Socio-Legal Studies (JOxCSLS) is currently calling for papers for Issue 2, 2018 and future issues.
  5. The School of Law of Sheffield, United Kingdom issues a call for paper for its workshop on Brexit and The Law School to be held at the Institute of Advanced Legal Studies in London, with the support of the ALT, Routledge, SLS and Sheffield Law School. 

Elsewhere Online

  1. Editors of the New York Times, If You Could Amend The Constitution, The New York Times
  2. John Lloyd, Commentary : In Poland, fighting for the will of the people, Reuters
  3. Jean-Philippe Derosier, Constitutionaliser le numérique, Constitutiondecodee.blog.lemonde
  4. Steeve Peers, revising EU visa policy, EU law analysis
  5. Tomasz Tadeusz Koncewicz, The Polish Counter-Revolution Two and a Half Years Later : Where Are We Today ? Verfassungsblog
  6. Benjamin Boudou, The Solidarity Offense in France : Egalité, Fraternité, Solidarité, Verfassungblog
  7. Wojciech Sadurski, Polish Chief Justice of the Supreme Court Under Pressure : What Now ?, Verfassungblog
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Published on July 9, 2018
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Memory and Forgetfulness in the Brazilian Dictatorship: Can New Revelations Help Brazil Expiate its Sins?

Juliano Zaiden Benvindo, University of Brasília

For a long time in Brazil, it has been taught that, in the final years of the dictatorship, during the presidency of General Ernesto Geisel (1974-1979) and General João Baptista Figueiredo (1979-1985), the repression and the human rights violations were gradually left aside in favor of a conciliatory discourse that would unleash the political openness, later culminating in the transition to democracy. In May, however, new bombastic revelations from a CIA Memorandum that the U.S. Department of State made public in 2015 and now revealed by Matias Spektor, a Professor of International Relations at the Getúlio Vargas Foundation and a columnist at Folha de S. Paulo, turned those assumptions upside down. They revealed how the high ranks of the military – and the presidents themselves – directly approved the summary execution of the adversaries of the regime. What at first seems just a revision of the past is, nonetheless, central for reassessing even further many interpretations of that period which, by focusing on the conciliatory argument, foster the forgetting of the atrocities of the regime. It has also sparked the debate over the need to reexamine the amnesty law deemed constitutional by the Brazilian Supreme Court in a controversial decision in 2010.[1] Will Brazil finally expiate its sins?

There would be possibly no better timing for such revelations. As constitutional lawyers, political scientists and historians struggle to understand the recent political events in Brazil, one topic that is gaining importance more than ever in the country is how Brazilian society deals with its past and how dealing with its past matters for the resilience of its democracy. Brazil has long been one of the countries in the region where the support for democracy scores the lowest, and, along with the political system going downhill, it has reached a dangerous zone. In the last months, demonstrations clamoring for a military intervention have popped up here and there. Though these protests make more fuss than representing a real menace to the democratic order, they signal that the wounds of the past have not healed and that the collective memory of the tragedy of the authoritarian years has severely faded over the years.

The dictatorships that struck Latin America from the sixties to the eighties were a tragic experience in all of the region and the difficulties in coping with the past human violations and their perpetrators became a serious concern for the new civilian governments. The military used different strategies to keep many of their privileges and positions virtually untouched, while assuring that a general amnesty would apply to the members of those regimes. President Augusto Pinochet’s words, when he was leaving office in Chile, could not be more straightforward. “No one touches anyone… the day they touch one of my men, the rule of law ends.”[2] No wonder that, when the civilians retook office, “acknowledgement became its polity.”[3] In Argentina, where “the armed forces left power after a moral collapse”[4] and there was a great demand for prosecution of those perpetrators of human rights violation, any conciliatory policy would suffer a serious social backlash.[5] Yet, although punishment would be essential as a way to demonstrate that such acts would never again be tolerable,[6] President Raúl Alfonsín acted very carefully and adopted procedures that transformed such a prosecution into a much more difficult endeavor.[7] Brazil was no different. As elsewhere, the military and the conservative sectors which supported it attempted to control the transition, though, especially during the Constituent Assembly of 1987/1988, they were successfully challenged by many sectors of organized civil society.[8]

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Published on July 5, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

Sandeep Suresh, Faculty Member (Jindal Global Law School)

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 South Korean Constitutional Court ruled that the State must allow conscientious objectors who refuse compulsory military service to perform alternate civilian service.
  2. The US Supreme Court upheld Donald Trump’s infamous “travel ban”.
  3. The US Supreme Court ruled that government workers who are not members of a labor union cannot be forced to pay any union fees.
  4. The US Supreme Court struck down a California law that forced anti-abortion clinics to provide information to women about abortion services provided by the State at low cost.
  5. The Indonesian Constitutional Court struck down several controversial provisions of a law that gave members of the House of Representatives wide immunity from criminal investigation and public criticism.

In the News

  1. Czech Republic looks set to legalize same-sex marriage after the national government gave its backing for a bill in that regard.
  2. France will amend its Constitution as MPs agree to incorporate a specific ban on gender discrimination and in that process, remove the word ‘race’ from the text.
  3. Ukraine’s President asserted that he will introduce constitutional amendments that would direct the country’s path towards integration with the European Union.
  4. Justice Anthony Kennedy will retire from the US Supreme Court on July 31, 2018.
  5. California passed a strict online data privacy law that imposes several obligations and restrictions on social media companies.

New Scholarship

  1. Armin von Bogdandy, Piotr Bogdanowicz, Iris Canor, Maciej Taborowski and Matthias Schmidt, A Constitutional Moment for the European Rule of Law – Upcoming Landmark Decisions Concerning the Polish Judiciary, Max Planck Institute for Comparative Public Law & International Law Research Paper No. 2018-10 (June 2018) (examining two upcoming cases at the Court of Justice of the European Union concerning Poland’s controversial laws affecting the judiciary and their probable impact upon the rule of law in the European Union).
  2. Bret Boyce, Obscenity and Nationalism: Constitutional Freedom of Sexual Expression in Comparative Perspective, 56 Columbia Journal of Transnational Law 681 (2018) (surveying the progress of constitutional obscenity jurisprudence in America, Canada, India, and Japan).
  3. Laura Dolbow, Agency Adherence to Legislative History, Administrative Law Review (Forthcoming 2018) (exploring how agencies in America use legislative history as an interpretive tool to implement directives contained in statutory text and how they respond to directives contained in the legislative history itself).
  4. Jill I. Goldenziel, Checking Rights at the Border: Detention of Migrants in International and Comparative Law, Virginia Journal of International Law (2018) (comparing cases involving detention of migrants in the America, Australia, and Europe to determine how states can legally comply with human rights norms while preserving their right to protect their borders).
  5. John O. McGinnis, Michael B. Rappaport, Ilya Shapiro, Kevin C. Walsh and Ilan Wurman, The Legal Turn in Originalism: A Discussion, San Diego Legal Studies Paper No. 18-350 (June 2018) (containing five essays which critically discuss the changes taking place in the scholarship on Originalism).

Call for Papers and Announcements

  1. The Emory International Law Review, is currently inviting submissions for the journal’s Special Content Section of the 33rd Submissions are evaluated on a rolling basis that favors early submissions. Interested authors must send their manuscripts to rshoot@emory.edu.
  2. The Indonesian Constitutional Court’s International Symposium is scheduled for October 1-3, 2018, on the subject of “Constitutional Court and Constitutionalism in Political Dynamics. Selected articles from the Symposium (based on peer review decision) will appear in the special issue of the Court’s academic publication, Constitutional Review Journal, published by the Center for Research and Case Analysis in the Indonesian Constitutional Court. All submissions, with CV attachment, must be sent by July 31, 2018. Successful applicants will be notified by August 13, 2018. For further information, please visit our official website at http://iccis.mahkamahkonstitusi.go.id.
  3. The ‘2nd Annual Equality Law Scholars Forum’ for junior scholars will be held at the UC Davis Law School on November 9-10, 2018. The organizers will pay for transportation and accommodation expenses of the participants. Interested scholars must submit abstracts of proposed papers by July 1, 2018 to Prof. Tristin Green at tgreen4@usfca.edu.
  4. The Network for Public Health Law and the American Society for Law, Medicine & Ethics will organize the 2018 Public Health Law Conference ‘Health Justice: Empowering Public Health and Advancing Heath Equity’ on October 4-6, 2018. To register for the conference, kindly visit the conference website.
  5. The Arab Association of Constitutional Law is inviting applications for the post of recruiting an Executive Director. Interested candidates should consider the Terms of Reference and send their CV and a cover letter to myriam.turki@dustour.org and salhi@dustour.org by July 9, 2018.

Elsewhere Online

  1. Gábor Halmai, Fidesz and Faith: Ethno-Nationalism in Hungary, Verfassungsblog
  2. Tom Hickey, The Republican Core of the Case for Judicial Review, UK Constitutional Law Association
  3. Mark Elliot, The European Union (Withdrawal) Act 2018, Public Law for Everyone
  4. Udit Bhatia, The Absence of Deliberative Democracy – The Fetters of the Anti-Defection Law, Indian Constitutional Law and Philosophy
  5. Shireen Morris, Why the Uluru Statement’s call for a voice fits with Australia’s constitutional culture and design, IACL-AIDC Blog
  6. Sudhir Krishnaswamy et al., Rights in Review 2017 (documentation of how the Supreme Court of India decided rights cases in 2017), Centre for Law and Policy Research
  7. M Ziauddin, Constitution and the country, The Express Tribune
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Published on July 2, 2018
Author:          Filed under: Developments
 

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 June 30, 2018
Author:          Filed under: Developments
 

Winning GE14 Despite the Odds: Why Malaysia Needs a Fairer Electoral System

[Editor’s Note: This is the sixth and final entry in our symposium on “Constitutional Implications of the Malaysian Tsunami.” The introduction to the symposium is available here.]

Kevin YL Tan, National University of Singapore

Introduction

We often forget that we can win an election simply by making sure that none of our opponents can win. Electoral systems and rules can be easily manipulated to favour certain political parties and candidates as is often done, and in that respect, Malaysia is no exception. I wish to highlight three systemic problems that have plagued Malaysia for many years: (a) the sub-optimal working of the single plurality or first-past-the-post system of voting; (b) the problem of malapportionment – where some constituencies are much larger than others – causing a serious dilution of representative voices; and (c) the lack of anti-hopping laws to prevent post-election party switching.

Gaming the Simple Plurality System

The simple plurality or ‘first-past-the-post’ system of voting was introduced in Malaysia in its first and only pre-independence election in 1955 and has remained in use till today. The mode of voting was not discussed in any detail by the Reid Commission who concerned itself more with electoral qualifications and constituency delineation. There was an assumption that a system of voting that worked well for the United Kingdom would work just as well in Malaysia.

However, the fairness and working of the simple plurality system of voting is also premised on several assumptions. First, universal suffrage; that all adult Malaysians are each given one vote and are not unreasonably denied the right to exercise it. Article 119 of the Federal Constitution specifies that every citizen who is aged 21 years or older and is ‘resident in a constituency’ is entitled to vote in that constituency. There is no discrimination between voters. Second, that each voter has an equal voice in the outcome of the election. In other words, all votes should carry the same weight. This requires that the populations in each constituency to be approximately equal in size and that each constituency to be represented by a single member in the Federal Parliament. The third assumption is that the candidate with the most votes will win the seat. Under the simple plurality system of voting, a candidate only needs to poll more votes than any other candidate to win the seat.

Such a system can be said to reflect the will of the majority only if the electorate is presented with a binary choice. Thus, if there are only two candidates, the candidate who polls the most votes necessarily also obtains the majority of the vote. However, this becomes extremely problematic when there are more than two candidates. Without the need to secure an absolutely majority, it is possible for a candidate to be elected with minority of the total votes cast. For example, Hiew King Chew (PR-DAP) won his seat in Kota Kinabalu in the 2008 general election by securing only 33.8% of the vote. In the four-way fight, Hiew pipped his closest opponent, Christine Liew (PR-PKR) by a mere 0.4% of the vote. The majority of the 9,464 voters – at least 66% – did not vote for Hiew.

Two related problems arise in such a scenario, one compounding the other. First, questions of legitimacy will always dog a candidate who secures a seat with a minority of votes. Second, the number of seats won may not be commensurate with the popularity of the winning party. Thus, in 2004, the BN secured a whopping 90.4% of the (198 out of 219) seats in the Dewan Rakyat even though it secured just 63.9% of the popular vote. It is even possible to lose the majority vote and still win the election, as we saw in GE13 in 2013. In that election, the BN won 133 of the 222 seats with only 47.38% of the popular vote whereas PKR obtained 50.87% of the popular vote but won only 89 seats. This was not the first time this has happened. In 1969, the Alliance won 74 of the 144 seats in the Dewan Rakyat with just 44.3% of the vote.

Read the rest of this entry…

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Published on June 28, 2018
Author:          Filed under: Developments