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Blog of the International Journal of Constitutional Law

Invitation to Friends of I-CONnect: Conference on “The Imperial Presidency in the Twenty-First Century” at The University of Texas at Austin


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

Friends of I-CONnect are invited to a conference on “The Imperial Presidency in the Twenty-First Century,” to be held here at The University of Texas at Austin on March 26-28, 2020. I am hosting this conference along with my faculty colleague Sanford Levinson.

The conference will feature 30+ speakers across six panels as well as a keynote address by Pulitzer-Prize winning journalist Charlie Savage of the New York Times.

The full conference program is available here.

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Published on March 3, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Maja Sahadžić, Research Fellow, 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 of Germany ruled that the law banning assisted suicide services is unconstitutional.
  2. The Constitutional Court of Germany confirmed that a headscarf ban for lawyers and trainees in German courtrooms is not unconstitutional.
  3. The Constitutional Court of Indonesia ruled that the simultaneous general elections are “most constitutional”.
  4. The Constitutional Court of Thailand dissolved an opposition party.
  5. The Constitutional Court of Thailand ruled that a provision in the criminal code regarding abortion violates the Constitution, and must be amended.
  6. The Constitutional Court of Guatemala suspended the appointment of judges to the Supreme Court amid concerns over influence peddling.
  7. The Constitutional Court of Malawi dismissed the application to suspend a landmark judgment that annulled the last presidential elections.
  8. The Constitutional Court of Ecuador denied the application to hold a referendum on mining activities in the Province of Azuay and confirmed the right of mining concession holders to legal security.
  9. The Constitutional Court of South Africa ruled that people born in South Africa to non-South African parents can apply for citizenship.
  10. The Constitutional Court of Israel ruled that the surrogacy law excluding single men and gay couples violates the constitutional rights to equality and parenthood.

In the News

  1. All judges of the Armenian Constitutional Court rejected the Government’s early retirement offer.
  2. The working group for drafting amendments to the Russian Constitution announced the date of a national referendum on constitutional changes.
  3. The President of the European Court of Human Rights appointed a new international judge to the Constitutional Court of Bosnia and Herzegovina.
  4. The European Parliament is considering to hold its meetings and plenary sessions by teleconference due to growing concerns about the fast-spreading coronavirus.
  5. The Parliament of Iraq failed to approve a new Government threatening to create a constitutional vacuum.
  6. The Tunisian Parliament approved Prime Minister-designate ending months of political deadlock.
  7. The Austrian Parliament passed a resolution condemning the Boycott, Divestment and Sanctions campaign as antisemitic, urging that the anti-Israel movement not be supported.

New Scholarship

  1. Karlo Basta, Performing Canadian State Nationalism through Federal Symmetry, Nationalism and Ethnic Politics (2020) (exploring the politics of federal a/symmetry in Canada, particularly in response to Quebec’s demands for greater recognition).
  2. Pau Bossacoma, Morality and Legality of Secession, A Theory of National Self-Determination (2020) (exploring secession from three normative disciplines: political philosophy, international law and constitutional law).
  3. Nasia Hadjigeorgiou, Protecting Human Rights and Building Peace in Post-Violence Societies (2020) (examining the relationship between protecting human rights and building peace in post-violence societies).
  4. Nausica Palazzo, Equality in Canada: A Tale of Non-normative Groups Struggling with Grounds of Discrimination, Oñati Socio-Legal Series (2020) (addressing the limits associated with a rigid grounds-based approach to equality, requiring claimants to categorize their identity within a “ground”, by taking the Canadian Supreme Court’s case law in the field of marital status as a case study).
  5. Jill I. Goldenziel and Manal Cheema, Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA, Maryland Law Review (2019) (explaining how lessons learned from the Foreign Intelligence Surveillance Act can inform legislation that would balance national security and Constitutional rights in the fight against disinformation).
  6. R. Daniel Kelemen, The European Union’s authoritarian equilibrium, Journal of European Public Policy (2020) (examining an original commitment to liberal democracy and backsliding toward competitive authoritarianism in the European Union).
  7. Joel Harrison, Post-Liberal Religious Liberty, Forming Communities of Charity (2020) (arguing that religious liberty is rooted in a theologically derived narrative of secularisation rather than being neutral).
  8. Mattia Casula, Under which conditions is Cohesion Policy effective: proposing an Hirschmanian approach to EU structural funds, Regional and Federal Studies (2020) (comparing cohesion policy implementation in Italy and Spain from 1989 to 2017 to explain where, when, and how it has been successful).
  9. Jorge Luis Fabra Zamora (ed.), Jurisprudence in a Globalized World (2020) (investigating the modifications to jurisprudence’s methodological approaches driven by globalization, the concepts and theoretical tools required to account for putative new forms of legal phenomena, and normative issues relating to the legitimacy and democratic character of these legal orders).

Call for Papers and Announcements

  1. The United States Institute for Peace invites registrations for the event “Global Trends in the Rule of Law, Latest Findings and Insights from the World Justice Project Rule of Law Index 2020” in Washington, D.C. on 11 March 2020.
  2. The Justice System Journal issues a call for papers for the special issue “Justice for All: Empirical Research on Indigent Defense”. The deadline for submissions is 15 May 2020.
  3. The University of St Andrews welcomes submissions for the conference “3rd International Conference on Migration and Mobilities in St Andrews” on 8-10 July 2020. The deadline for submissions is 7 March 2020.
  4. The University of Leiden invites submissions for a series of workshops “Behavioural Approaches in International Law” in Leiden and Hamburg starting on 26 November 2020. The deadline for submissions is 30 March 2020.
  5. The University of Antwerp invites applications for the summer school “Legal technology and legal innovation” in Antwerp on 7-11 September 2020. The deadline for applications is 1 May 2020.
  6. The University of Antwerp invites applications for tenured academic staff in two courses “Global legal systems” and “Legal pluralism”. The deadline for applications is 9 April 2020.

Elsewhere Online

  1. Brice Dickson, Unionist Fears in a United Ireland, IACL-AIDC Blog
  2. Anna Gamper, Second chambers in federal states, 50 Shades of Federalism
  3. Gabriel Toggenburg, The 5th of all EU-r rights: no forced labour and how the Charter contributes, Eureka!
  4. Hanna Wilberg, A Duty of Consistency? The Missing Distinction Between Its Two Forms, UK Constitutional Law Association Blog
  5. Brian Christopher Jones, The Widely Ignored and Underdeveloped Problem with Judicial Power, UK Constitutional Law Association Blog
  6. Timothy Jacob-Owens, A Breakthrough for Language Rights in Northern Ireland, Oxford Human Rights Hub
  7. David R. Cameron, After another election setback, the CDU moves up date for choosing new leader, Yale MacMillan Center
  8. D. Tinashe Hofisi, Fortifying Zimbabwe’s ‘Imperial’ Presidency? The Proposed Second Amendment to the Constitution, ConstitutionNet
  9. Marguerite Soete and Annabelle Lepièce, Will Thomas Cook bankruptcy help Brussels Airlines to avoid a fine by the Belgian Competition Authority?, Lexology
  10. David Abraham, Class, Identity and “We the People”, Verfassungsblog
  11. Daniel Halberstam, Could there be a Rule of Law Problem at the EU Court of Justice?, Verfassungsblog
  12. Timothy Less, Bosnia’s ‘Second Collapse’ is Starting to Look Inevitable, BalkanInsight

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Published on March 2, 2020
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Special Undergraduate Series–The Doctrine of Vested Interest and India’s Unconstitutional Ban on E-Cigarettes


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


–Nihal Sahu and Vedantha Sai, B.A. LLB (Hons.) Students, The National University of Advanced Legal Studies, Kochi

On the 18th of September, 2019, the President of India promulgated an ordinance prohibiting electronic cigarettes, imposing penalties up to one year of imprisonment and a fine of one lakh rupees for violating the ban. In spite of the immediate reactions of e-cigarette manufacturers, as well as various petitions in High Courts throughout the country, it is finally possible, as the smoke has settled, to examine the constitutionality of the ban. In this post, we advance a transformative reading of the presumption of constitutionality, arguing that it is concomitant with the test of arbitrariness under the Indian Constitution’s equality code.

While there exists evidence that e-cigarettes, which produce an aerosol by heating a complex solution of chemicals that may contain nicotine (though in lighter quantities), cause health problems, there is no conclusive evidence that they pose a long-term health risk comparable to that of conventional combustible cigarettes.  Cigarettes, however, remain merely taxed and regulated, while e-cigarettes and other vaping products are now flatly illegal. This is perplexing. Why do cigarettes, an acknowledged and proven health risk, remain freely available, while e-cigarettes are banned?

In this post, we argue that this logical discrepancy violates the Constitution of India. The argument is based on the conventional doctrines of reasonable classification, arbitrariness and proportionality (Part I). Further, the Government, has a vested financial interest in the largest tobacco company in India. Legalarguments are, of course, separate from the logical and public policy problems with the ban. We argue, however, in this circumstance, that claims generally seen as persuasive policy arguments shift the presumption of constitutionality and impose a direct burden on the state in the context of constitutional litigation by virtue of their vested interest (Part II). 

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Published on February 29, 2020
Author:          Filed under: Analysis
 

Enter Friends of Court: Amicus Briefs in Slovakia


Simon Drugda, PhD Candidate at the University of Copenhagen

The Slovak Parliament passed a new organising act on the Constitutional Court in 2019, which for the first time recognised the admissibility of unsolicited amicus briefs.[1] This post examines the design of the device and its functional alternatives in Slovak constitutional law.

Amici Curiae, or “friends of the court,” are individuals, groups, or entities, who present the court with new legal arguments, social scientific information, or alternative perspectives on the litigated question. The device allows interested non-parties to influence the case outcome, which may have a larger systemic impact.

The function of amicus briefs differs based on the context and author(s) of the brief. The Italian Constitutional Court recently also changed its rules of procedure to allow groups and other entities “representing collective or diffuse interests” to make submissions to the Court.[2] From the wording and content of the announcement, it seems that the primary function of amicus briefs in Italy is increased public participation because the Court might have been previously inaccessible, or perceived as such.[3] There is not much to helps us understand the utility of amicus briefs in Slovakia. Since the device, has been operative for less than a year, we lack data on the volume of amicus briefs, their content, the stage of submission, and identities of amici.

Nevertheless, we may infer the purpose of the change to admit unsolicited third-party submissions at the apex level from the explanatory memorandum to the Act on the Constitutional Court. The legislation was drafted in cooperation with the Court and its judges, who seemed to be particularly interested in using the device for information acquisition.[4] Under the previous legal framework, the President of the Constitutional Court (CCP) could request the opinion of the President of the Supreme Court and the Attorney General in cases of a judicial review of legislation or administrative acts.[5] The consultative process enabled the CCP to acquire relevant information from the two most senior officers in the legal system on demand. The types of actors that the Court could address was limited, however, and opinions of the AG and President of the Supreme Court at times lacked non-redundant informational content.

The Court never admitted unsolicited submissions from outside of the justice system, although select few NGOs tried to intervene in high-profile cases. Perhaps the most memorable instance of such an attempt was the brief of an NGO examining comparative case law on self-amnesties in the Amnesty Abolition Case.[6] In that case, the Court did not consider the submission but at least acknowledged the receipt of the brief on the margins of the decision.[7]

However, the decision making of the Constitutional Court involves complex legal questions, which may exceed the disposable knowledge resources and capacity of the Court. The Court needs knowledge. There are several means how to acquire relevant but unavailable information, including requests for opinions to government entities, but also contracting external advisors with expertise in niche areas of law.[8] Still, hiring external advisors is an added expense. Amicus briefs come at a marginally lower cost. Allowing unsolicited submission enables the Court to externalise costs of legal research to third parties, and the upside for the amici is the ability to translate their preferences into law.[9]

The new Act on the Constitutional Court extends the power of the CCP to request opinions from other government bodies, including the Ombudsman, but also non-governmental entities, such as professional lawyers’ organisations, scientific institutions, renowned experts in the field, or groups, whose legal interests may be affected by the case-outcome (Article 86.2). The request of the CCP entails a legal obligation to submit an opinion (Article 86.3).

More interestingly, members of the legal profession may also submit unsolicited amicus briefs, although the Court retains the right to reject submissions (86.4). The design of the device seemingly confirms that the Slovak Court, unlike its Italian counterpart, is primarily interested in expert knowledge. That is because the ability of civil society groups to file a brief is limited by the requirement that lawyers must sponsor the brief. That is unfortunate because the rules of procedure for the Constitutional Court do not allow third-party intervention to a case or actio popularis. Other avenues for public participation in constitutional litigation are unavailable. That said, even a limited introduction of amicus briefs to Slovak constitutional law is a welcome development. The CCP can newly solicit opinions from outside groups, or these groups may themselves present an unsolicited submission to the Court. Decisions of the Constitutional Court may potentially affect vast areas of law and public policy because of their strong radiating effect. We may, therefore, expect an increase in the rate of submission of amicus briefs over time, as interest groups gain proficiency in using the device.[10]

Suggested Citation: Simon Drugda, Enter Friends of Court: Amicus Briefs in Slovakia, Int’l J. Const. L. Blog, Feb. 27, 2020, at:
http://www.iconnectblog.com/2020/02/enter-friends-of-court:-amicus-briefs-in-slovakia


[1] Article 86 of the Act No. 314/2018 Coll. on the Constitutional Court of the Slovak Republic

[2] Italian Constitutional Court, Press Release – The Court Opens to Hearing the Voice of Civil Society (11 January 2020) <https://www.cortecostituzionale.it/documenti/comunicatistampa/Press_release_AC.pdf>

[3] Matteo Romagnoli, “The Italian Constitutional Court Opens Up to Hear the Voice of Civil Society Matteo Romagnoli” (Verfassungsblog, 15 February 2020) <https://verfassungsblog.de/the-italian-constitutional-court-opens-up-to-hear-the-voice-of-civil-society/>

[4] Explanatory memorandum to the draft Act on the Constitutional Court <https://www.nrsr.sk/web/Dynamic/DocumentPreview.aspx?DocID=456174>

[5] Article 39 of the Act No. 38/1993 Coll. on the Organisation of the Constitutional Court, on Court Proceedings, and Status of Constitutional Judges

[6] Via Iuris, Amicus Curiae Opinion on the Judicial Review of the Resolution of the Slovak Parliament to Abolish Mečiar’s Amnesties <https://viaiuris.sk/wp-content/uploads/2017/09/VIA-IURIS-list-AMICUS-CURIAE-Meciarove-amnestie-16.5.2017.pdf>

[7] PL. ÚS 7/2017 [84]

[8] Article 31 of the Act on the Constitutional Court

[9] On the flip side, judges have control over the direction of research of their assistant but not the amici.

[10] For amicus briefs to be fully functional, however, the Court and its President need to establish a practice on the maximum lengths of amicus briefs, the deadline for their submissions, and other technicalities such as electronic filing. Detailed rules on the submission of amicus briefs are still lacking.

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Published on February 27, 2020
Author:          Filed under: Developments
 

Crying Wolf: The Emergency Comes Before the U.S. Supreme Court

Andrea Scoseria Katz, NYU School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

On Saturday, February 22, the United States Supreme Court granted an emergency request by the Trump administration to suspend a lower federal court order blocking a new immigration rule from taking effect while it faced challenge in litigation.[1] In an order issued summarily and without comment, the Supreme Court lifted the lower court injunction, allowing the rule to take effect.

Much of the commentary surrounding the case, Wolf v. Cook County, has focused on the “public charge rule,” which forces immigrants seeking residency in the United States to demonstrate that they will not rely on any public assistance, including Medicaid, supplemental nutrition, and housing assistance. Critics have described the new rule as a “wealth test” and a “brazen attempt to limit legal immigration by forcing immigrants to prove their financial status” to enter the country.[2] Last summer, a top Trump official responded to such criticism with an improvised paraphrase on Emma Lazarus’s sonnet, famously etched on the Statute of Liberty: “Give me your tired and your poor who can stand on their own two feet and who will not become a public charge.”[3]

Those debates notwithstanding, it may be the procedural oddities around Wolf that give the most lasting cause for alarm. After several courts blocked the revised rule on the grounds that it departed dramatically from federal law, the Government made a direct request for emergency relief to the Supreme Court while these cases were pending before the courts of appeal. In January, in an order issued with no explanation, and over the dissent of all four liberals, the Court granted the Government’s request and allowed the public charge rule to take effect across most of the country. This weekend’s order, concerning a second case on the rule, produced an identical 5-4 vote unaccompanied by an explanation. There was one difference: a scathing dissent from Justice Sonia Sotomayor accusing the majority of undermining the “fair and balanced” administration of justice by bowing to a series of “increasingly hollow” requests for emergency relief by the Trump administration.

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Published on February 26, 2020
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Myanmar’s Military-Allied Party Proposes Constitutional Amendment Increasing Civilian Powers

–Jason Gelbort, Legal Consultant

On February 25, the union parliament of Myanmar (formerly known as Burma) began debating bills to amend the military-drafted 2008 constitution,[1] including a proposal from the military-allied Union Solidarity and Development Party (USDP) that could significantly redraw the constitutional balance of powers between the military and the parliamentary-elected president. Among the USDP’s package of amendments is a proposal to establish the decision-making procedure for the powerful National Defence and Security Council (NDSC). This proposal would give decision-making authority over the NDSC to the parliamentary-elected president, and associated proposals would potentially further shift power to the president.[2]

The NDSC has been a source of ongoing tension between civilian and military leadership. Although the 2011-2015 USDP government regularly held NDSC meetings, the current NLD administration has never called a formal meeting, reportedly wary because the military controls six of the 11 constitutionally-specified NDSC members. The military and USDP have complained about the lack of NDSC meetings. The NLD has proposed a constitutional amendment for civilian council members to outnumber the military seven-to-five.[3] The Shan National League for Democracy proposed reconfiguring membership to decrease military participation and add the executives of Myanmar’s constituent states.[4] The Arakan National Party proposed eliminating the NDSC altogether.[5]

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Published on February 25, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


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

In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books 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 Indian Supreme Court delivered its decision in support of equaling women officers to their male counterparts in the military by making them eligible for permanent commissions, which qualifies them to serve as a full tenure.
  2. Thailand’s Constitutional Court held that Article 301 of the country’s criminal code penalizing abortion is unconstitutional. The Court asked the government to amend the law within one calendar year.
  3. The Constitutional Court of Thailand dissolved an upstart opposition party which challenged the military establishment for taking an illegal loan from its billionaire founder.
  4. The Supreme Court of Estonia ruled that Regulation No 99, of November 29, 2019, which stipulates that the wastewater should be as pure as the water in water bodies is constitutional.

In the News

  1. After more than four months after the election of the new parliament, the Tunisian president Kais Saied still struggles with the formation of the new government. The president announced that if the parliament rejects the currently proposed cabinet, he will dissolve the parliament and calls for early elections. On another note, the country has been witnessing a constitutional argument over the parliament authorities versus the current cabinet.
  2. The Iraqi Prime Minister-designate Mohammed Tawfiq Allawi announced that he formed a cabinet of political independents and called the parliament to vote on it on February 24. The constitution gives him until March 2 to present a cabinet for parliamentary approval.
  3. The autonomous Bougainville government in Papua New Guinea declared lately to amend its constitution to, among other issues, allow the president to serve for more than two terms. The Ombudsman Commission released a statement asking the government to follow the procedures of amending the constitution strictly.
  4. The Indonesian government dismissed concerns over a proposed bill to give the president the power to revoke regional regulations. The economic minister said that the president would have this power only over the administrations bellow the central government.
  5. Two new judges were appointed at the German Federal Court of Justice. The two judges are Jörn Fritsche and Mario von Häfen who were both judges at High Regional Courts.

New Scholarship

  1. Samy A. Ayoub, Law, Empire, and the Sultan: Ottoman Imperial Authority and Late Hanafi Jurisprudence (2019) (examining the Ottoman imperial authority in authoritative Ḥanafī legal works from the sixteenth to nineteenth centuries CE)
  2. Christian Bjørnskov and Stefan Voigt, Is constitutionalized media freedom only window dressing? Evidence from terrorist attacks, Public Choice (2020) (finding that neither the direct nor indirect constitutional protection of the media freedom mitigates the post-terror curtailment of press freedom)
  3. Dominique Dalla-Pozza and Greg Weeks, A Statutory Shield of the Executive: To What Extent Does Legislation Help Administrative Action Evade Judicial Scrutiny?, in Janina Boughey and Lisa Burton Crawford (eds.), Interpreting Executive Power (2020) (explaining the functional justification for the preference of codification of the executive power in Australia)
  4. Diego Muro and Ignacio Lago (eds.), The Oxford Handbook of Spanish Politics (2020) (presenting a comparative, empirical analysis of Spanish politics, including a chapter on the judicial politics and the Constitutional Court)
  5. Judith Resnik, (Un)Constitutional Punishments: Eighth Amendment Silos, Penological Purposes, and People’s “Ruin,” The Yale Law Journal Forum (2020) (contextually examining the US Supreme Court decision in Timbs v. Indiana on the application of the constitutional prohibition of excessive fines to states )

Call for Papers and Announcements

  1. Università degli Studi di Milano invites applications for a conference on “Academic Freedom under Pressure? New State and Social Challenges in a German-Italian Comparison,” which will be held on September 24-25, 2020, at the University of Milan under the sponsorship of the German Academic Exchange Service – DAAD. Please note that accepted participants will be reimbursed for travelling and accommodation expenses.
  2. The University of Texas Law School invites participants for its conference on “The Imperial Presidency in the Twenty-First Century,” convened by professors Richard Albert and Sanford Levinson. The conference will be held at Texas Law School in Austin, on March 26-28, 2020.
  3. The American University, Washington College of Law in Washington DC, seeks an Assistant Director for its Marshall-Brennan Constitutional Literacy Project.
  4. The American Enterprise Institute (AEI) invites attendees, online and in persons, for its book event hosting Keith Whittington to discuss his book “Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present.” The event will take place on February 21, 2020.
  5. The National University of Public Service at Ludovika and the Centre for Parliamentary Studies at the University of Győr invites for a conference on parliamentary and legislative research, under the title “30 Years of Parliaments and Legislation in Central and Eastern Europe.” The deadline for submission of proposals is March 22, 2020.
  6. The paper submission period is now open for the 37th Annual Conference of the European Association of Law and Economics (EALE), which will be held on September 24-25, 2020, at the University of Paris 2. Submissions deadline is on April 6, 2020.
  7. The Institute for Advanced Studies in Public Administration (IDHEAP), Faculty of Law, Criminal Sciences and Public Administration of the University of Lausanne, invites young researchers to submit a paper as part of the meeting on the topic “What social sciences can contribute to the study of (public) law,” to be held on May 14–15, 2020, in Lausanne, Switzerland. The deadline for submission of abstracts is March 20, 2020.

Elsewhere Online

  1. David R. Cameron, AKK resigns as CDU chair, and Germany and Europe wonder who will lead after Merkel, Yale MacMillan Center
  2. Elisa Arcioni & Rayner Thwaites, Aboriginal Australians not Vulnerable to Deportation, IACL-AIDC Blog
  3. Kevin Casas-Zamora, The State of Democracy in Africa, International IDEA
  4. Jordan S. Rubin, Project Bolsters Tribes’ High Court Claims Following Defeats, Bloomberg Law
  5. Hoitsimolimo Mutlokwa, Land Expropriation without Compensation in South Africa, IACL-AIDC Blog
  6. Daniel Marans, Embracing Supreme Court Expansion Carries No Political Cost, Study Says, HuffPost
  7. Mark Mancini, On the Rule of Law, Blockades, and Indigenous Self-Government, Double Aspect
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Published on February 24, 2020
Author:          Filed under: Developments
 

Special 20 Percent Discount–New Book–“Revolutionary Constitutionalism”


Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

I-CONnect is pleased to share a special 20% discount code for our readers interested in a new book entitled Revolutionary Constitutionalism (Hart 2020).

To order this book at the discount rate, enter code CV7 at checkout here.

Here is the book’s description:

This book, the result of a major international conference held at Yale Law School, contains contributions from leading scholars in public law who engage critically with Bruce Ackerman’s path-breaking book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law. The book also features a rebuttal chapter by Ackerman in which he responds directly to the contributors’ essays.

Some advance Ackerman’s theory, others attack it, and still others refine it–but all agree that the ideas in his book reset the terms of debate on the most important subjects in constitutionalism today: from the promise and perils of populism to the causes and consequences of democratic backsliding, from the optimal models of constitutional design to the forms and limits of constitutional amendment, and from the role of courts in politics to how we identify when the mythical ‘people’ have spoken. A must-read for all interested in the current state of constitutionalism.

And here are the contents of the volume:

Introduction: A Global Tour of Constitutionalism
Richard Albert

1. A Political, not a Legal History of the Rise of Worldwide Constitutionalism
Dieter Grimm

PART I — THE LEGITIMATING FOUNDATIONS OF REVOLUTIONARY CONSTITUTIONALISM

2. A Defence of Non-representational Constitutionalism: Why Constitutions Need not be Representational
Alon Harel

3. Constitutionalism and Society: Ackerman on Worldwide Constitution-Making and the Role of Social Forces
Denis Baranger

4. Bruce Ackerman’s Theory of History
Roberto Gargarella

5. Constitutionalism and the Predicament of Postcolonial Independence
Aziz Rana

6. Revolution on a Human Scale: Liberal Values, Populist Theory?
Andrew Arato

PART II — CONSTITUTIONAL EVOLUTIONS AND TRANSFORMATIONS

7. Charismatic Fictions and Constitutional Politics
Tom Ginsburg

8. Uncharismatic Revolutionary Constitutionalism
Stephen Gardbaum

9. Unconventional Adaptation and the Authenticity of the Constitution
Alessandro Ferrara

10. Constitutional Revolution, Legal Positivism and Constituent Power
Yasuo Hasebe

11. The Traditions of Constitutional Change
Richard Albert

PART III — THE FUTURE OF EUROPE

12. Constitutional Crossroads: A View from Europe
Neil Walker

13. How Europe Brought Judicial Review to France: A Response to Bruce Ackerman
Daniel Halberstam

14. Constituting the Judiciary, Constituting Europe
Mitchel Lasser

PART IV — THE LAW AND POLITICS OF REVOLUTION

15. Sustaining Revolutionary Constitutions: From Movement Party to Movement Court
Menaka Guruswamy

16. The Italian Constitution as a Revolutionary Agreement
Marta Cartabia

17. Constitutional Strategy for a Polarised Society: Learning from Poland’s Post-revolutionary Misfortunes
Maciej Kisilowski

18. Choosing to Have Had a Revolution: Lessons from South Africa’s Undecided Constitutionalism
James Fowkes

19. The Race against Time
Bruce Ackerman

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Published on February 20, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest.

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

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

Developments in Constitutional Courts

  1. The High Court of Australia held that Aboriginal Australians who are born overseas and are not citizens of Australia are nevertheless not within reach of the “aliens” power in section 51(xix) of the Australian Constitution.
  2. The High Court of Kenya halted a controversial biometric ID scheme until new data protection laws are enacted.
  3. The Supreme Court of India delivered an important decision on the use of affirmative action in promotions in public posts.
  4. The European Court of Human Rights held that indefinite retention of DNA profile, fingerprints and photograph of a person convicted for a minor offence was disproportionate and violated the right to respect for private life under Article 8 of the Convention.
  5. The Supreme Court of India issued mandatory directions to political parties to publish criminal antecedents of their candidates.

In the News

  1. Military-appointed lawmakers in Myanmar opposed a proposal by the parliamentary Joint Bill Committee to merge the military’s constitutional amendment bills with those submitted by the National League for Democracy (NLD) for discussion by Parliament.
  2. The Public Protector of South Africa stated that adverse court findings against her could not form the basis of a parliamentary inquiry, which could result in her removal from office.
  3. Bosnian Serb officials have been accused of breaking the law after they stopped work on deciding any state-level matters, pending adoption of a new law on the Constitutional Court.
  4. The Independent National Electoral Commission in Nigeria in the exercise of its power granted by Section 225(a) of the 1999 Constitution, deregistered 74 political parties that failed to meet the requirements for listing on its register, in the wake of the last year’s elections and the recent rerun.
  5. An indigenous community opposing the construction of a gas pipeline in Canada launched a legal challenge at the Supreme Court over the climate impact of fossil fuel projects on indigenous territories.
  6. Geoffrey Cox, the UK government’s attorney-general threw his weight behind calls to curb judges’ powers to overturn ministerial decisions, saying there is a “widespread feeling” courts are making decisions that “properly ought” to be parliament’s.
  7. The District Court of the Hague in The Netherlands ordered the immediate halt to a digital benefit fraud detection tool targeted at poor neighborhoods in the Netherlands because it violated human rights norms, giving credence to a report filed by  Philip Alston the UN Special Rapporteur on extreme poverty and human rights.
  8. A judge in South Africa issued an arrest warrant for former president Jacob Zuma for failing to appear in court on a corruption case that he has sought to avoid for months.
  9. The President of Guinea announced that he would go ahead with a contested plan to revise the West African country’s constitution next month, a move that threatened to inflame political tensions after a series of deadly demonstrations further.

New Scholarship

  1. Stephen M. Griffin, Against Historical Practice: Facing Up to the Challenge of Informal Constitutional Change 35 Constitutional Commentary (2020) (developing an approach to “constitutional change as state-building” to resolve contentious disputes over war powers and judicial nominations in the Obama and Trump administrations as well as recent Supreme Court cases).
  2. Alexandra Sinclair and Joe Tomlinson, RR v Secretary of State for Work and Pensions: Empowering Tribunals to Enforce the Human Rights Act 1998, Modern Law Review, forthcoming 2020 (analyzing the human rights implications of the judgment in RR v Secretary of State for Work and Pensions which also has significant implications for social security law).
  3. Katherine Shaw, Reva Siegel and Melissa Murray, Introduction to Reproductive Rights and Justice Stories in Reproductive Rights and Justice Stories, forthcoming 2020 (providing an overview of the stories about the individual litigants and lawyers behind important cases in reproductive rights which recognize courts as but one of many institutions in constitutional democracy).
  4. Jack M. Balkin, How to Regulate (and Not Regulate) Social Media Yale Law School, Public Law & Legal Theory Research Paper Series (2020) (describing three policy levers that might create better incentives for privately-owned companies to subject themselves to greater regulation: (1) antitrust and competition law; (2) privacy and consumer protection law; and (3) a careful balance of intermediary liability and intermediary immunity rules).
  5. Jordi Jaria-Manzano and Susana Borrás (eds.), Research Handbook on Global Climate Constitutionalism (2020) (exploring how to develop constitutional discourses and strategies to address issues of sustainability and global equity, and thereby tackle the negative effects of climate change whilst also advancing a more sustainable, equitable and responsible global society).
  6. Kajit J Bagu (John Paul), Peacebuilding, Constitutionalism and the Global South: The Case for Cognitive Justice Plurinationalism (2019) (demonstrating the failure of liberal constitutionalism in guaranteeing peace in the postcolonial global South and developing an alternative, more compelling constitutionalism for peacebuilding in conflicted regions which could deliver peace by addressing historic, conceptual, legal, institutional and structural issues that have created social inequality and injustice).
  7. Alexandre de le Court, Sufficiency principle and minimum social security benefits: an analysis from the perspective of the German right to a minimum of subsistence, 32(2) Rev. derecho (Valdivia) (2019) (analyzing the recent case concerning social minimum in Germany from a comparative perspective).
  8. Brian Christopher Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (forthcoming 2020) (arguing that written constitutions have been drastically and persistently over-sold throughout the years and that their wider importance and effects are not nearly as significant as advocates maintain). 
  9. Toomas Kotkas, Ingrid Leijten, and Frans Pennings (eds.), Specifying and Securing a Social Minimum in the Battle Against Poverty (2019) (bringing together a wide variety of perspectives on the legal and academic dimensions of a social minimum and its expression in law and policy across jurisdictions).
  10. Neville Hoad, “I Don’t Want to Live in a World Where People Die Every Day Simply Because They Are Poor”: From the Treatment Action Campaign to Equal Education, from Stories of Human Rights to the Poetics of Inequality, Humanity: An International Journal of Human Rights, Humanitarianism, and Development (2019) (exploring the rhetorical and genre differences between human rights arguments and inequality arguments, speculating that the former privileges narrative as a dominant mode of representation and that the latter frequently require a poetics—paradoxically the poetics of numbers).
  11. Padraic Kenna  Héctor Simón‐Moreno, Towards a common standard of protection of the right to housing in Europe through the charter of fundamental rights, 25(6) European Law Journal (2019) (on developing common standards of housing using housing financialization and mortgage directives and examining the practice of the ECJ). 

Call for Papers and Announcements

  1. The Law & Human Rights Centre at the University of Essex holds a Speaker Series event on 19 February featuring Sylvian Aubry (The Global Initiative for Economic, Social and Cultural Rights), Prof. Aoife Nolan, (University of Nottingham), and Dr. Koldo Casla (University of Essex).
  2. A limited number of doctoral scholarships are available as part of a new ERC-funded project based in the Sutherland School of Law, University College Dublin. The successful candidates will have the opportunity to participate in a comparative research project investigating how constitutional systems are responding to the challenges of populism and declining public trust. The project is led by Professor Eoin Carolan, who will act as supervisor to the successful candidates.
  3. The Graduate Law Students Association of McGill University’s Faculty of Law announced the 13th Annual McGill Graduate Law Conference on May 7-8 2020 in Montreal, Canada. This year’s theme is “’Law Actually’: Intimacy and Trust”.
  4. The University of Amsterdam invites applications for the position of an Assistant Professor in Sustainable Global Economic Law. The deadline for applications is April 15 2020.
  5. Ghent University, Belgium invites submissions to an International Conference on ‘The European Convention on Human Rights turns 70: Taking Stock, Thinking Forward’ on 18-20 November 2020.
  6. World Comparative Law/VRÜ invites submissions to a forthcoming special issue on ‘Corrupting Democracy? Interrogating the Role of Law in the Fight against Corruption and its Impact on (Democratic) Politics’.
  7. The European University Institute invites applications to its summer school on `Human Rights and Conflict Resolution’ and a `General Course on ‘Reimagining Law, Human Rights and War’. The deadline for applications is 15 April 2020.

Elsewhere Online

  1. Katharine Young, Trumping Human Rights in the United States? The Commission on Unalienable Rights, Oxford Human Rights Hub
  2. Kate Galloway and Melissa Castan, High Court rules Indigenous people cannot be deported as aliens, but the fight for legal recognition remains, The Conversation
  3. Lewis Graham, Human Rights in the Supreme Court in 2020, UK Human Rights Blog
  4. Walter Khobe Ochieng, Comparing the Superior Courts, Nairobi Law Monthly
  5. Carlos Oviedo Moreno, A Painful Slap from the ECtHR and an Urgent Opportunity for Spain, Verfassungsblog
  6. Linda Greenhouse, The Supreme Court in the Mean Season, New York Times
  7. Faranaaz Veriava and Sasha Stevenson, It’s time to rethink our strategies for securing socio-economic justice, Daily Maverick
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Published on February 17, 2020
Author:          Filed under: Developments
 

How are Constitutional Theocracies Born?

Yvonne Tew, Georgetown University Law Center

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here. For a fuller discussion of the ideas in this post, see Yvonne Tew, Stealth Theocracy, 58 Va. J. Int’l L. 31 (2018). Available at SSRN: https://ssrn.com/abstract=3287923.]

Religion appears to be a rising political force across the globe. Constitutional democracies the world over are grappling with politics based on religious and racial identities as well as increasing ethno-nationalism. In September 2019, after its unprecedented defeat in Malaysia’s national elections the year before, the United Malays National Organisation signed a political cooperation pact with the Malaysian Islamic Party, formalizing the alliance between the country’s two largest Malay-Muslim parties at an event in Kuala Lumpur that attracted  thousands of supporters.[1] Indonesia’s 2019 presidential elections featured a divisive battle between incumbent President Joko Widodo, who picked the leader of Indonesian Ulema Council as his running mate, while his opponent Prabowo Subianto ran a campaign aimed at mobilizing conservative Indonesian Muslims.[2] In India, the Bharatiya Janata Party swept to a landslide victory in May 2019; a few month later, Prime Minister Narendra Modi’s party passed a contentious citizenship law for migrants that excluded Muslims, sparking massive protests.[3] Sri Lanka, Bangladesh, and Pakistan have witnessed a surge in nationalist political forces that have agitated against religious minorities.[4] And in January 2020, accounts of the Myanmar military’s violence against the Rohingya Muslim minority played out on the public stage of the international court of justice.[5] Religion’s role has been increasingly expanded in the public sphere of many constitutional orders, including those not normally thought of in terms of constitutional theocracy.[6] What is striking is how this global phenomenon is taking place.

The birth of a constitutional theocracy tends to be associated with revolution or the explicit creation of religious principles of governance. Think, for example, of the 1979 Iranian revolution. Or the twenty-first century constitution-writing efforts for Afghanistan and Iraq, and those following the Arab Spring revolutions in Egypt, Libya, and Tunisia, which explicitly constitutionalized Islam as a source of law within those states.

Sometimes, though, a constitution’s religious character may emerge through more subtle means of constitutional change, which are less transparent than creating or amending a constitutional text. Fundamental transformations of constitutional identity toward a more religious order can occur by stealth through political and judicial actors. What’s striking is the key role that courts play in elevating the place of religion in the public order. We tend to think of courts as “bastions” of secularism that act as “effective shields against the spread of religiosity” and principles of theocracy. [7] Yet, in many contexts, courts act to expand, not limit, the place of religion in the constitutional order.

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Published on February 12, 2020
Author:          Filed under: Analysis