magnify

I·CONnect

Blog of the International Journal of Constitutional Law

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VII: The Political Parties: From a Two Party System to the Crisis of Representation in Colombia

[Editor’s Note: This is Part VII in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here and Part VI is available here.]


–Luisa Fernanda García López, Profesora Principal, Universidad del Rosario

The Colombian political system is considered to have the largest institutional continuity in Latin America. However, the degree of the political parties’ implication within the political reality of the country has been rigid and without obligation during the country’s different institutional transformations. The political parties have been real participants of the voting and the legislative systems, but not real participants during the political reforms particularly during the one in the 1990s. Between 1958 and 1991, Colombian democracy was well known for being a restricted or controlled democracy because the national agreement closed off political participation to other movements and political parties. Taking turns in office was limited to the two traditional parties. The limitations by both the Conservative Party and the Liberal Party created huge unpopularity and promoted high levels of abstention during elections. Repercussions began in the 1980s. During this time of huge instability, strong violence and confrontations among several guerrilla groups started to settle down. On one hand, the Medellin cartel allied with the M-19 a guerilla group that stormed the Court House in 1986 and decimated the Court Criminal Chamber. On the other hand, the Cali cartel interfered in the government elections by funding Ernesto Samper’s presidential campaign who was elected president in 1994. Finally, paramilitary groups were initially named “Convivir” (Cohabit) to fight the guerrillas’ kidnapping and drug trafficking that dominated most of the country. Thereafter, in the early 1990s, these groups entered in the business and culture of drug trafficking, and became illegal groups called paramilitary. This Colombian reality shows the lack of solid institutions, neither leaders nor strong political parties that actually represent the Colombian society.

Read the rest of this entry…

Print Friendly
Published on November 7, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VI: Explaining the Institutional Role of the Colombian Constitutional Court

[Editor’s Note: This is Part VI in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here and Part V is available here.]


–Diego González, Professor of Constitutional Law at Universidad Externado de Colombia

The standard opinion suggests that the significance and the very power of the Colombian Constitutional Court (CCC) is a consequence of having dysfunctional legislative bodies and weak administrative agencies. According to this, the CCC is a central player in the political system as long as it has attempted to approach some of the black holes left by the political branches, created by either the lack of political will or by dysfunctional public policies. This article contends that this is only partially true. Other sets of reasons can help explain why the CCC has developed as it has. This paper I presented at the Externado Symposium explores four arguments: historical, normative, conceptual and practical.

Read the rest of this entry…

Print Friendly
Published on November 6, 2018
Author:          Filed under: Analysis
 

What’s New in Public Law

–Nausica Palazzo, Ph.D. Researcher in Comparative Constitutional Law, University of Trento

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

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

Developments in Constitutional Courts

  1. The European Court of Human Rights found that a conviction for insulting Muhammed was not in violation of freedom of expression.
  2. The Constitutional Court of South Africa directed the government to rectify apartheid-era legislation preventing African women from owning property.
  3. A regional Constitutional Court in Russia ruled that the border law tracing new borders with Chechnya is unconstitutional.
  4. The Supreme Court of South Korea found for the first time a right to conscientious objection to military service on religious and political grounds.
  5. The Constitutional Court of Moldova held that the law conditioning children’s admission to schools and other communities upon vaccination does not violate the constitution.
  6. The U.S. Supreme Court declined to hear Republicans’ challenge to Pennsylvania electoral map.
  7. The Italian Constitutional Court urged Parliament to amend the current law prohibiting assisted suicide.

In the News

  1. Ireland removed blasphemy from the constitution through popular vote.
  2. Far-right candidate Bolsonaro won the presidential elections in Brazil.
  3. Armenia on its way to approving amendments to the electoral law.
  4. Georgia is to hold a runoff vote for presidential elections on November 6.
  5. UK High Court ruled that that pension plans under the guaranteed minimum pension (GMP) scheme should be gender equalized.
  6. Former Bangladesh Prime Minister was found guilty of corruption.
  7. Slovakia rejected a constitutional amendment on the election of the Constitutional Court judges.
  8. Ukraine scheduled a constitutional amendment where it pledges to join the EU and NATO.
  9. A Chinese Arbitration Court held that Bitcoins can be legally held and transferred.

New Scholarship

  1. David Boonin (Ed.), The Palgrave Handbook of Philosophy and Public Policy (Palgrave Macmillan, 2018) (offering a rich collection of philosophical papers on public policy issues such as abortion, punishment, gene editing, military drones)
  2. Asem Khalil, State of Necessity, in The Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press, 2018) (exploring the use of the category of state of necessity across different areas of law, such as constitutional, criminal and international law)
  3. Judith Resnik, The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain), in Burkhard Hess and Ana Koprivica (eds), Open Justice: The Role of Courts in a Democratic Society (Nomos, 2019) (exploring the procedures to balance the right to ready access to information and the right to be forgotten, and the proposed reforms to such procedures)
  4. Joseph Raz, The Law’s Own Virtues, available on SSRN (providing a new elaboration of the rule of law)
  5. Manoj Mate, Constitutional Erosion and the Challenge to Secular Democracy in India, in Mark Graber, Sanford Levinson & Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press, 2018 Forthcoming) (exploring the process of “constitutional erosion” of secularism caused by religion and religious rhetoric in India’s elections)
  6. Robert Leckey, Judging in Marriage’s Shadow, 26 Feminist Legal Studies (2018) (parsing out the Canadian case law on cohabitation and contending that it risks revitalizing traditional ideals of the good marriage)

Calls for Papers and Announcements

  1. Boston College Law School, with support from the Institute for Liberal Arts Submissions, invites faculty and graduate students to participate in a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
  2. Paper proposals are solicited for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives, to be held in Chicago on April 29 & 30, 2019.
  3. The Law and Society Association welcomes paper proposals to participate in the Annual Meeting, to be held on May 30-June 2, 2019 in Washington DC. This year’s theme is “Dignity,” and the deadline for individual papers is November 7, 2018.
  4. The ASLI has issued a call for Papers for the 16th ASLI Conference on “The Rule of Law and the Role of Law in Asia,” to be held on June 11-12, 2019 in Singapore. The deadline for submitting abstracts is December 3, 2018.
  5. The ASLI and the National University of Singapore Faculty of Law welcome papers for the Asian Law Junior Faculty Workshop to be held on June 13, 2019 in Singapore, opened to scholars who have been in a full-time academic or research position for less than 7 years. The deadline for submission is 12 November 2018.
  6. The North-West University has issued a call for papers for the conference “Law, Roots and Space” to be held in Potchefstroom, SA on April 15-17, 2019. Proposals should be sent by November 30, 2018.
  7. The ICRC has launched a call for papers on “Historical perspectives on medical care in armed conflict.” Authors are invited to send short research proposals (2 pages) at icrcevents@gmail.com at any time, and complete papers by April 31, 2019.
  8. Bocconi University invites applicants for the PhD in Legal Studies – Curriculum in International Law and Economics. Applications are due by January 16, 2017.
  9. The Faculty of Law at The Chinese University of Hong Kong invites applications for several positions as Professor/Associate Professor/Assistant Professor, especially in the following areas: Oil & Gas Law; Comparative Constitutional Law; International/Comparative Criminal Justice; International Economic Law; Property Law; Common Law. Applications close on November 15, 2018.

Elsewhere Online

  1. David R. Cameron, After another defeat in state election, Merkel announces she will step down as CDU leader, Yale Macmillan Center
  2. Paul Dermine, The Italian Budget Drama – Brussels and Rome on Collision Course, Verfassungsblog
  3. Francisca Pou Giménez & Ana Micaela Alterio, Book Review: Transformative Constitutionalism in Latin America, IACL-AIDC BLOG
  4. Bernard Bell, Mandating Drug Price Transparency (Part II), Notice & Comment
  5. Priya Singh Nelson, Between Narratives and Borders, The Völkerrechtsblog
  6. Alastair Richardson, Ireland Votes to Remove Blasphemy Offence from Constitution, OxHRH Blog
  7. Matthew Dresden, Did China Really Create a New Trademark Office?, China Law Blog
  8. Sarah Morales, Supreme Court of Canada should have recognized UNDRIP in Mikisew Cree Nation v. Canada, Canadian Lawyer
  9. Renáta Uitz, What Being Left Behind by the Rule of Law Feels Like, Part II, Verfassungsblog
  10. Oliver Patel, The EU’s negotiating strategy has worked so far, but it’s playing a risky game, The Constitution Unit
  11. Anurag Deb & Conor McCormick, The Bradley Bill and the cessation of constitutionalism in Northern Ireland, Admin Law Blog
Print Friendly
Published on November 5, 2018
Author:          Filed under: Developments
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part V: Strong and Weak Courts: A Preliminary Approach to Judicial Strength

[Editor’s Note: This is Part V in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here and Part IV is available here.]


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

Constitutional courts are essential institutions in new democracies. It is almost impossible to find a democratic regime without a constitutional (or supreme) court in charge of judicial review of legislation. The expansion of constitutional courts across the globe, has led to a growing interest in analyzing their role as political actors. One of the main strands in this inquiry tries to answer the question relative to what factors enable or hinder the rise of a ‘successful’ or ‘strong’ constitutional court. In this context, it is usual to find analyses that examine typical examples of successful courts (such as the Colombian or Costa Rican courts), while some others frequently explore certain emblematic experiences of ‘weak or ‘failed’ instances of judicial review (this is the case of the courts of Venezuela and Hungary).

The doctoral research I am currently conducting seeks to evaluate whether the Colombian Constitutional Court is, indeed, a robust institution in matters related to the limitation of presidential powers, and aims to explain the factors behind its strength or weakness. It goes without saying that, to attain these goals, it is necessary to have a relatively clear and stable meaning of ‘judicial strength’. Nevertheless, it is interesting to notice how most of the academic literature in the field has paid just a peripheral attention to this issue, and assumes that there is a shared and implied (albeit nonexistent in my view) concept of judicial robustness. In this context, the paper I presented at the symposium is a first approach that attempts to propose a definition of a ‘strong’ court and tries to offer some tools to measure judicial strength. More specifically, the paper claims that judicial strength is composed by three elements: sincerity, compliance and effectiveness.

Read the rest of this entry…

Print Friendly
Published on November 5, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part IV: The Formalist Resistance to Unconstitutional Constitutional Amendments

[Editor’s Note: This is Part IV in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, and Part III is available here.]


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

The most fascinating question in the study of modern constitutional change raises something of a paradox: can a constitutional amendment be unconstitutional? We once treated the formal rules of change codified in constitutions as entrenching the necessary and sufficient procedures for amendments but we know this is no longer true as a descriptive reality. Today we can be no more certain that an amendment shall be valid when it satisfies the procedural strictures set out in the formal amendment rules than we can be certain that a law passed by a legislature is constitutional.

Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan—have either asserted or exercised the power to invalidate a constitutional amendment on substantive grounds.[1] Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally-perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule.

Read the rest of this entry…

Print Friendly
Published on November 3, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part III: How Efficient is the Colombian Constitutional Court in Promoting Social Changes?

[Editor’s Note: This is Part III in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, and Part II is available here.]


–Andrés Mauricio Gutiérrez Beltrán, Constitutional Law Professor, Universidad Externado de Colombia

Many academics assert that courts are powerful political actors. According to the dominant view, courts have the last word on moral controversies, they introduce new topics on the political agenda, they encourage social activists to stand up for their rights, they convince societies of the ethical value of these demands and they can even decide who becomes president[1] (E.g. Bush v. Gore).

Colombia is no exception. We think that the Colombian Constitutional Court (CCC) is a very powerful agent in Colombian society. Actually, from a certain perspective it is. For example, the Court has prohibited the presidential reelection of one of the most popular politicians in recent history. Despite the evident conservatism in our society, the Court has handed down decisions that contradict religious and moral dogmas. For instance, the Court invalidated provisions that prohibited abortion, euthanasia and the use of drugs. Therefore, it is easy to understand why scholars like David Landau claim that the CCC is today the most powerful court in the world[2]. Well, I am afraid that we should think twice before taking this as a compliment.

Read the rest of this entry…

Print Friendly
Published on November 3, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part II: Presidential Re-Election in Latin American Case Law: A Work in Progress

[Editor’s Note: This is Part II in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, and Part I is available here.]


–Sabrina Ragone, Associate Professor of Comparative Law, University of Bologna; Senior Research Affiliate, Max Planck Institute for Comparative Public Law and International Law

The study of Latin American constitutionalism is one of my main research interests; the region is today one of the most lively and original in the world in terms of constitutional developments and innovation[1].

Within this framework, I have started a new line of research dealing with presidential re-election in several jurisdictions, paying special attention to the role played by the corresponding supreme and constitutional courts. The theoretical and factual premises are the following: a) one of the main features of Latin American constitutionalism is the presence of presidential systems; b) the (constitutional) regulation of the re-election of the president should be considered as an element of the constitutional identity according to part of the scholarship; but c) this identity can go in both directions, towards permission and prohibition; d) numerous constitutional courts have dealt with the issue using two main parameters: the separation of powers and the principle of equality.

In the past two decades, there have been different constitutional approaches to regulating or prohibiting re-election: through i) constitutional amendment; ii) the election of a Constituent Assembly; iii) a popular consultation plus National Review Assembly); iv) referendum or Constituent Assembly plus referendum; finally, v) judicial intervention[2].

Read the rest of this entry…

Print Friendly
Published on November 2, 2018
Author:          Filed under: Analysis
 

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part I: The Paradox of the Transformative Role of the Colombian Constitutional Court

[Editor’s Note: This is Part I in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here.]


–Carlos Bernal, Justice, Colombian Constitutional Court

The Colombian Constitutional Court is well-known worldwide for carrying out transformations that political authorities were unable to effectuate. The enforcement of constitutional rights has catalysed changes concerning the protection of vulnerable individuals (such as inmates,[1] and internally displaced people),[2] the elimination of discriminatory practices (for instance, against indigenous peoples and other minorities),[3] the advancement of real equality in the health and pensions systems,[4] and the assurance of a minimum core of economic and social rights against the political inertia.[5] Moreover, the Court has maintained essential constitutional principles in the face of constitutional amendments, in particular, those from presidential origin.[6]

On the one hand, these changes have still failed to achieve in full the goals set by the constitution. Thus, the Court should keep carrying out its transformative role. On the other hand, the Court is becoming the only battleground for solving deep-rooted societal conflicts. This centralization is engendering undeniable side effects that have the potential of hindering the transformations. This leads to a paradox: if the Court declines the task of continuing the transformations, the constitutional objectives concerning the realization of constitutional rights, the rule of law, and deliberative democracy will never be achieved in full. However, if the Court carries on with the changes, its decisions might not generate the desired transformative effects. This is due to the following side effects.

Read the rest of this entry…

Print Friendly
Published on November 1, 2018
Author:          Filed under: Analysis
 

Introduction to I-CONnect Symposium–Contemporary Discussions in Constitutional Law

[Editor’s Note: I-CONnect is pleased to feature short posts based on papers presented at a symposium on “Contemporary Discussions in Constitutional Law” held at the Externado University of Colombia. This online symposium will feature nine parts, including this Introduction. We are very grateful to Professors Magdalena Correa Henao and Andrés Mauricio Gutiérrez Beltrán for convening the symposium, and for serving as guest editors for this online symposium.]


–Magdalena Correa Henao & Andrés Mauricio Gutiérrez Beltrán, Externado University of Colombia

The Department of Constitutional Law of Universidad Externado de Colombia hosted a symposium entitled Contemporary Discussions on Constitutional Law. The main goal of the event was to analyze some of the most relevant topics that are currently discussed in the field of constitutional law.

The symposium began with a presentation by Professor Carlos Bernal Pulido, justice of the Colombian Constitutional Court, who shared some thoughts about the great paradox of the “Transformative Role of the Colombian Constitutional Court.” This Court is well-known worldwide for carrying out transformations related to the enforcement of constitutional rights and the elimination of discriminatory practices, among other important issues. However, these changes have still failed to achieve in full the goals set by the Court, which leads to the above-mentioned paradox: if the Court declines the task of issuing its characteristic transformative decisions, the constitutional objectives concerning the realization of constitutional rights, the rule of law and deliberative democracy will never be achieved in full. However, if the Court carries on with the changes, its decisions might not generate the desired transformative effects. His paper will form the basis of his short post for I-CONnect, to be published next in this multi-part online symposium.

Read the rest of this entry…

Print Friendly
 

100 Years of Austrian Republicanism – 100 Years of Austrian Federalism?

Anna Gamper, Professor of Public Law, University of Innsbruck

2018 is a very special year for Austrian constitutional lawyers since it was exactly 100 years ago today that the Republic of (German-)Austria (since 1919: Republic of Austria) was founded.

After the end of the First World War, the representatives of the remaining, predominantly German-speaking parts of the Austro-Hungarian monarchy (the so-called “Kronländer” or Cisleithanian Länder) assembled as the “Provisional National Assembly for German-Austria” in Vienna.

On 30 October 1918, the Assembly passed the “Resolution on the Fundamental Institutions of the State Power”[1] which vested the Provisional National Assembly with legislative powers and provided for an Executive Committee (“State Council”) that, elected by the Provisional National Assembly, acted as the Provisional Government.

Read the rest of this entry…

Print Friendly
Published on October 30, 2018
Author:          Filed under: Developments