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Blog of the International Journal of Constitutional Law

New Contact Information: Moving from Boston to Austin

Richard Albert, The University of Texas at Austin

As of today, I have joined The University of Texas at Austin as Professor of Law.

I invite readers with questions about I-CONnect submissions or collaborations to contact me at my new email address: richard.albert[at]law.utexas.edu.

I will continue to hold an academic appointment at Boston College as Senior Fellow at the Clough Center for the Study of Constitutional Democracy, directed by Professor Vlad Perju, with whom I-CONnect is proud to partner on the first-of-its-kind annual Global Review of Constitutional Law.

I look forward to contributing to the already-vibrant programming in public law at UT Austin and to hosting many of our readers on campus as visiting scholars and conference participants in the years ahead.

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Published on January 1, 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. In India, the Kerala High Court has recognized the fundamental right of a woman to dignity of a mother and fairness at workplace.
  2. Ukraine’s Constitutional Court has revoked a law enabling political parties to strip MPs of their mandate.
  3. The Constitutional Court of South Africa is set to deliver its verdict on the impeachment case against the Country’s President.
  4. The Constitutional Court of South Africa upheld the constitutionality of a university’s language policy to shift to an English medium education institution.
  5. Germany’s Constitutional Court rejected a complaint against the refusal to postpone the execution of the prison sentence.

In the News

  1. In Turkey, a new emergency decree extends immunity to civilians who carried out political violence defending the elected government during the failed 2016 coup.
  2. Justices in Romania claimed that recent amendments to existing laws violate 14 articles of the constitution.
  3. A former Peruvian President was pardoned by the current President after serving a term in prison for human rights abuses and corruption.
  4. The President of Austria’s Constitutional Court criticizes tougher legislation on asylum and security measures.
  5. Volkswagen petitions to the German Constitutional Court to block emissions audit.

New Scholarship

  1. Karen Engle, Feminist Governance and International Law: From Liberal to Carceral Feminism, in Janet Halley, Prabha Kotiswaran, Rachel Rebouché & Hila Shamir, eds., Governance Feminism: Notes from the Field (2018) (providing an account of three distinctive feminist approaches to women’s human rights that developed from the mid-1980s through the mid-1990s)
  2. Angela Huyue Zhang, Jingchen Liu, and Nuno M. Garoupa, Judging in Europe: Do Legal Traditions Matter?, J. of Comp. L. & Econ. (Forthcoming 2017) (considering the extent to which the legal origins of judges bear a statistically significant effect on case outcomes and that the rapporteur plays a crucial role in the decision-making process)
  3. Gregory Ablavsky, With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings, Stanford L. Rev. (forthcoming) (introducing the potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied)
  4. Benjamin Plener Cover, Quantifying Partisan Gerrymandering: An Evaluation of the Efficiency Gap Proposal, 70 Stanford L. Rev. (forthcoming) (explaining how electoral districting presents a risk of partisan gerrymandering)
  5. Claire R. Thomas and Ernie Collette, Unaccompanied and Excluded from Food Security: A Call for the Inclusion of Immigrant Youth Twenty Years after Welfare Reform, 31 Geo. Immigration L. Rev. 197 (2017) (advocating for immediate access to Food Stamps benefits for immigrant kids applying for and granted Special Immigrant Juvenile Status.)

Calls for Papers

  1. The Brazilian Academy of International Law invites submission for the 16th Brazilian Congress of International Law to be held in the city of Foz do Iguaçu from August 22 to August 25, 2018.
  2. The VU Amsterdam is organizing a Summer Course on Laws in Antiquity in July 2018.
  3. A call for papers has been issued for the ‘2018 First Women Lawyers Symposium’ be held on Friday 29th June 2018, venue TBC.
  4. The European Society for Comparative Legal History (ESCLH) welcomes submissions for its first Postgraduate Conference.
  5. Revue Libre de Droit (“RLD”) invites submissions for a special issue on Law in Brazil.
  6. Portsmouth Law School at the University of Portsmouth and the European University Institute (EUI) are organising a 2-day international conference on “Economic Constitutionalism: Mapping its Contours in European and Global Governance”. The conference will be hosted by the EUI in Florence on 14th and 15th June 2018.

Elsewhere online

  1. Brian Christopher Jones, Constitutional longevity does not equal democratic success, The Hill
  2. Scott Bomboy, Remembering the Supreme Court’s first dissenter, Constitution Daily
  3. Anton Katz ,Replacing the President of South Africa, Daily Maverick
  4. Adam Winkler, Is the Supreme Court Backsliding on LGBT Rights?, New Republic
  5. Joseph Neff, No mercy for judges who show mercy, ABA Journal
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Published on January 1, 2018
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Book Review: Katalin Kelemen on András Jakab, Arthur Dyevre & Giulio Itzcovich’s “Comparative Constitutional Reasoning”

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Katalin Kelemen reviews András Jakab, Arthur Dyevre & Giulio Itzcovich’s book on Comparative Constitutional Reasoning (Cambridge 2017)]

Katalin Kelemen, Associate Professor in Law, Örebro University, Sweden

This gap-filling edited collection on comparative constitutional reasoning is the final product of a five-year research project, involving 25 scholars from four continents who authored the various contributions, each examining one court’s style of constitutional reasoning. The focus is on constitutional reasoning by judicial actors and, more specifically, on their “justificatory reasons” (i.e. the justifications that they publicly adduce for their decisions) rather than their “motivating reasons” (i.e. the motives and mental processes that lead them to choose a particular course of action), even though the latter cannot be completely ignored either (see pp. 10-12). The originality of this volume lies in the method applied by the authors, a combination of quantitative and qualitative analysis that produced an unprecedented systematic account of constitutional reasoning.

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Published on December 31, 2017
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Developments in Chilean Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Chilean constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Iván Aróstica, Justice of the Chilean Constitutional Court & Universidad del Desarrollo; Sergio Verdugo, Universidad del Desarrollo & JSD candidate, New York University; Nicolás Enteiche, Universidad del Desarrollo & P. Universidad Católica de Chile

I. Introduction

This report aims to introduce the Chilean Constitutional Court (Tribunal Constitucional de Chile – hereinafter, the “CC”) and to identify the landmark cases it decided in 2016. We do not refer to all the CC’s decisions. Instead, we focus on cases that were politically salient or were landmark cases from a doctrinal perspective, and which involved the CC’s constitutional review power to strike down legislation, or deny the application—on constitutional grounds—of a legal provision in a concrete case. Because we need to be brief, we focus on the main aspects of the majority decisions, and we ignore dissenting opinions and concurrences. The selected cases that we show in this report are examples of a broader trend of judicial empowerment, that has situated the CC as a key actor in the Chilean constitutional system.

The relevant literature typically assumes that the CC’s power has increased because of the 2005 constitutional amendment. That amendment gave the CC important new judicial review powers and changed the CC’s justices’ appointment mechanisms. After the implementation of these modifications, scholars have noticed that the CC’s dissenting opinion rate has increased,[1] that there was a shift from a judicial career profile to an academic profile of the justices,[2] and that the CC became less deferential to the legislator.[3] It is thus uncontroversial to say that the CC has notably increased its influence in the past few years.

Although the main purpose of this report is to introduce the CC and to describe these selected cases of 2016, we also use the selected cases as examples that illustrate the fact that the CC is becoming an increasingly consequential actor. Its influence is not only explained by the importance of its decisions in specific cases, but also because of the impact those decisions produce among legislators, importing to Chile the idea of “constitutional dialogue” to reaffirm the CC’s authority in interpreting the Constitution, and the power of the legislative branch to reform the Constitution as a reaction to the CC’s decisions. Even though we cannot fully demonstrate this claim by only examining a selection of 2016 cases, we show examples that support the CC’s consequential character, and we explore one case that illustrates how the CC understands the “constitutional dialogue” idea.

Although this is not the place to comment on the future of the CC, the reader should be aware that the CC is currently functioning in a politically complex context. A group of people has been demanding a constitutional replacement since 2011, and President Bachelet has consequently initiated a constitution-making process that will not come to an end during her administration. Within the numerous topics that are part of this constitution-making debate, the CC’s preventive (ex-ante) judicial power and the CC’s justices’ appointment mechanisms have been put into question.

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Conference Report: Sacred/Secular Space Workshop on Law and Religion

–John Joseph Wamwara, Dooyeweerd (SJD) Fellow, Center for the Study of Law and Religion, Emory University School of Law; Law Lecturer, Moi University and Catholic University of Eastern Africa

This conference, held on December 24-25, 2017, was jointly organized by Radzyner Law School at IDC Herzliya, and the the Restoring Religious Freedom Project at Emory University School of Law. The aim of the conference was to explore how law and religion interact in space. In public and private spaces, how does the law treat the sacred? How are the conflicts arising from the clash of rights in public, private, or sacred spaces resolved? The opening speeches by Prof. Prof. Ammon Lehavi, Dean Radzyner Law School, and Dr. Mark Goldfeder, Director, Restoring Religious Freedom Project at Emory Law School highlighted these dilemmas especially in the Holy Land where property rights are contested between religious organizations up to an inch. The case of the Church of the Holy Sepulcher made for an excellent illustration of how explosive property claims in the sacred places can get. This is one building with six different claims from six different Christian denominations. Therefore, even the movement of a chair or a ladder could lead to a skirmish with far-reaching consequences.

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Published on December 28, 2017
Author:          Filed under: Developments
 

Independence Referenda Through the Prism of Kurdistan (I-CONnect Column)

Aslı Bâli, UCLA School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]

An independence referendum in Iraqi Kurdistan was held on September 25, 2017 with disastrous results. Given its significance comparatively little attention has been paid to the course and consequences of the referendum, particularly when contrasted with focus on the Catalan referendum—including a symposium in ICONnect—that occurred the following week. The differences in the conduct of the two referenda—both concerning the fate of a territory seeking independence—are striking. On the one hand, the Kurdish referendum went off with very few hitches on the day of. Campaigning for the referendum occurred over a period of two weeks without any significant incidents and polling day was also peaceful. The Iraqi constitutional court had ordered the suspension of the referendum to examine its constitutionality but the leading Kurdish political figure driving the referendum campaign, the President of Iraqi Kurdistan, Masoud Barzani, went ahead with the vote despite the legal challenge. The result was that 93% of votes cast favored independence. The Iraqi constitutional court declared the vote unconstitutional the same day.

In Catalonia, by contrast, the day of the referendum was marked by violence with nearly 15% of polling places shut down by police raids and over 1000 injured by riot police in the course of the voting. The results of the Catalan referendum—90% voting in favor of independence—were widely seen as evidence that only pro-independence voters turned out and the aftermath witnessed arrest warrants issued for elected leaders in the territory and the dissolution of the Catalan parliament by the Spanish prime minister. Catalan elections to replace the ousted parliamentarians resulted in a renewed majority for “separatist” parties, in a fresh rebuke to Madrid.

The fact that an independence referendum in the heart of Europe would be met by violence while a comparable referendum in Iraq would unfold peacefully is remarkable. But, in fact, a longer view of the aftermath of the referenda shows considerable convergence in their outcomes. Weeks after the vote, Baghdad undertook a violent intervention against the Kurdistan Regional Government (KRG). Like Catalonia, following the referendum, the KRG finds itself with fewer political options and facing far greater coercion from the center. Moreover, the territory within the regional control of Iraqi Kurdistan has been reduced, a result likely to have longer-term adverse implications for the KRG than any outcome in Catalonia.

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Published on December 27, 2017
Author:          Filed under: Analysis
 

Special Undergraduate Series–Seventy Years of Accession: Reflections on Article 370 of the Indian Constitution

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

Zaid Deva, Candidate for B.A/LL.B (Hons.), Gujarat National Law University, India; Founding Editor, Indian Journal of Constitutional & Administrative Law

Article 370, as the House will remember, is a part of certain transitional provisional arrangements. It is not a permanent part of the constitution. As a matter of fact, as the Home Minister has pointed out, it has been eroded, if I may use the word, and many things have been done in the last few years which have made the relationship of Kashmir with the Union of India very close. There is no doubt that Kashmir is fully integrated.

This was Jawaharlal Nehru, speaking on Article 370 in the Lok Sabha.[1] On another occasion, G. L. Nanda, the then Home Minister noted, “What happens is that only the shell is there. Article 370, whether you keep it or not, has been completely emptied of its contents. Nothing has been left in it.”[2]

Article 368 of the Indian constitution provides the procedure for its amendment. While rest of the provisions have been ‘amended’ from time to time, for Article 370, on the other hand, immediately after its insertion the process of ‘erosion’ was started, as is apparent from the above two statements.

When we talk of constitutional making, Article 370 of the Indian constitution, stands out perhaps as one of the most controversial provisions (although posing a unique position which requires a serious academic inquiry) to be inserted in any of the federal constitutions in the modern world. In a country, widely regarded as quasi-federal, where enough provisions are there in the national constitution dealing with state matters, Article 370, in its current interpretations, governs the relationship of the Union, with a unit, having its own constitution. As it happens, the State of Jammu & Kashmir is the only state to negotiate its terms of membership with the Union of India.[3]

Taking a strictly legal perspective, Article 370 (Article 306-A in the draft constitution) was inserted in the Indian Constitution to make a place for the special status of the state created by the Instrument of Accession.

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Published on December 27, 2017
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Developments in Hungarian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Hungarian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Eszter Bodnár, Assistant Professor at Eötvös Loránd University; Fruzsina Gárdos-Orosz, Senior Research Fellow at the Hungarian Academy of Sciences Centre for Social Sciences; Zoltán Pozsár-Szentmiklósy, Assistant Professor at Eötvös Loránd University

I. Overview

The Hungarian Constitutional Court (Court, CC) finished 355 cases in 2016. Only one-fourth of them resulted in a decision on the merits, and only a fragment ended with an annulment of the unconstitutional legal act or court decision.

In this year-in-review, we would like to give a short overview of the most important decisions of the Court in 2016 and give some information about the political and legal background where the Court operates. We also point out the most important controversies that characterize this year’s case law and seek some conclusions.

II. The Constitution and the Constitutional Court

The Hungarian Fundamental Law effective from 1 January 2012 and Act CLI of 2011 on the Constitutional Court have significantly modified the competencies of the Constitutional Court and the role of the different institutions in initiating constitutional review. Changes implemented already by the amendments to the former Constitution in 2010 and 2011 stayed in force concerning the government coalition gaining fundamental influence in nominating judges and limiting the competence of the Court regarding economic and financial constitutionality issues. The president of the Court was formerly elected by the judges for three years, but with the reform, the president became elected by the Parliament for the duration of the whole term of his office. Finally, an amendment raised the number of judges from 11 to 15 without any justifiable pressing need.

Among several changes, the Fundamental Law introduced three types of constitutional complaints and abolished the formerly existing actio popularis. The system of actio popularis meant that it was a legal possibility for everyone to turn to the Constitutional Court without personal interest claiming that law, a legal provision or regulation was contrary to a constitutional provision (abstract ex-post facto review).

The solemn aim of the new constitutional complaint mechanisms was to protect against personal injuries caused by ordinary courts and provide a possibility for constitutional review also in cases where the complainant cannot turn to the ordinary court. Moreover, the Constitutional Court may supervise the constitutionality of legal provisions when applied in certain judicial cases and lead to an unconstitutional court decision. Judicial referral as it existed before 2012 stayed in force, which means that judges in pending cases turn to the Constitutional Court in case they state that an applicable piece of law is unconstitutional.

Originally, besides the ombudsman (who initiated almost all procedures of this kind after 2012), the Government and a one-fourth minority of the MPs (from 2010 the latter would need the cooperation of all parliamentary opposition groups) were entitled to initiate the abstract ex-post facto review procedure of the Constitutional Court. From March 2013, with the entering into force of the Fourth Amendment to the Fundamental Law, the Head of the Curia and the Chief Public Prosecutor can also submit a proposal for a review of constitutionality. The new regulation can still be qualified in this regard as a very restrictive one as to the control of legislation especially in comparison to the former solutions.

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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. The European Court of Justice ruled that the recognition of foreign “private divorce” such as Talaq is a matter of state law and not of European law.
  2. The Constitutional Court of Turkey ruled that the right to join a union includes the decision-making process of whether or not to join.
  3. The Constitutional Court of Indonesia ruled that allowing a company to ban marriage between co-workers is unconstitutional.
  4. The Constitutional Court of Germany ruled that the current method of selecting medical students is partly unconstitutional because it violates equal opportunity laws.
  5. The Constitutional Court of Columbia ruled that forced human papillomavirus (HPV) vaccination is unconstitutional because it violates human dignity.
  6. The European Court of Justice ruled that UBER services are covered by services in the field of the transportation; therefore, each member state can regulate the conditions for providing these services.

In the News

  1. The Constitutional Court of Armenia is about to be vested of the power to verify the constitutionality of government decisions or laws after the Parliament passes an amendment to the law on the Constitution.
  2. The U.S. Senate voted and the U.S. President signed the Tax Cuts and Jobs Act (tax reform).
  3. The Uganda Parliament voted to remove the Presidential age limit.
  4. The President of Ukraine submitted Anti-Corruption Court law to Parliament

New Scholarship

  1. Josephine Jarpa Dawuni & Akua Kuenyehia, International Courts and the African Woman Judges, Routlegde 2018 (examining questions on gender diversity, representative benches, and international courts by focusing on women judges from the continent of Africa)
  2. Pietro Faraguna, Constitutional Identity in the EU— A Shield or a Sword?, German Law Journal, 2017, Vol. 18, No. 7,  1617-1640 (elaborating a conceptual map of different conceptions of constitutional identity in the EU and contending that different conceptions and applications of constitutional identity have varying effects on the European composite constitutional adjudication system and that the institutional and procedural framework should be calibrated accordingly)
  3. P. Faraguna, “Do you ever have one of those days when everything seems unconstitutional?”: The Italian Constitutional Court strikes down the electoral law once again – Italian Constitutional Court Judgment of 9 February 2017 No. 35, European Constitutional Law Review, 2017, Vol. 13, Issue 4, 778-792 (reporting on Italian Constitutional Court’s decision that struck down part of the electoral law as unconstitutional in 2017; exploring the judgement from a comparative perspective)
  4. Jorge Contesse, The International Authority of the Inter-American Court of Human Rights: A Critique of the Conventionality Control Doctrine, International Journal of Human Rights, 2017, forthcoming (discussing the constitutional turn in the Inter-American Court of Human Rights’ recent jurisprudence, exemplified in the adoption of the conventionality control doctrine)
  5. Janos Iala-Butora & Andras L. Pap, Illiberal Relations: The Individual, the State and the Dignity of Communities under the Hungarian and Slovak Constitutions, Yearbook of the Institute of East-Central Europe/Rocznik Instytutu Europy Środkowo-Wschodniej 2017; 15(2): 57–77 (focusing on the conceptualization of personhood and constitutionally protected groups, as well as the relationship between the individual and the state, in particular the ethno-cultural majority in two European Union (EU) member states showing illiberal tendencies, Hungary and Slovakia)[Abstract only]
  6. Graham Butler, The Coming of Age of the Court’s Jurisdiction in the Common Foreign and Security Policy (2017) 13 (4), European Constitutional Law Review, p. 673-703 (analysing the changing nature of the European Court of Justice’s jurisdiction in EU external relations law)
  7. Conor McCormick, Reviewing the Reviewability of the Attorney General for Northern Ireland, [2018] Public Law 22 (examining the historically unreviewable nature of the Attorney General’s powers in Northern Ireland, and contrasting that position with an emerging view of the Northern Ireland High Court)

Calls for Papers and announcements

  1. The University of Innsbruck, Austria organizes an international conference on bicameralism on March 22 and 23, 2018.
  2. The International Courts and Tribunals Interest Group (ICTIG) of the American Society of International Law (ASIL) calls for papers for a conference to be held at the John Marshall Law School in Chicago, Illinois on February 9, 2018.
  3. The Tilburg Law Review calls for papers for is next issue in collaboration with Centre for Enterprise Liability, University of Copenhagen.
  4. The Utrecht Journal of International and European Law is accepting submissions for its General Issue on International and European Law to be published in August 2018.
  5. The European Society of International Law (ESIL) calls for papers for its 14th Annual Conference to be held in Manchester, United Kingdom, under the auspices of the Manchester International Law Centre (MILC) on 13 to 15 September 2018.
  6. The Faculty of Law of the Eötvös Loránd University and the International Society of Public Law (ICON-S) calls for papers for their international conference on ‘The Power of Public Law in the 21st Century’ to be held in Budapest, Hungary on April 20th, 2018.
  7. Last call: The Younger Comparativists Committee of the American Society of Comparative Law calls for papers for its 7th Annual Conference to be held on 20-21 April, 2018 at Case Western Reserve University School of Law in Cleveland, Ohio.

Elsewhere Online

  1. Asma Alouane, The ECtHR rules on the compatibility with the right to respect for private and family life of the refusal of registration of same-sex marriages contracted abroad, conflictoflaws.net
  2. Allen Rostron, The Clash of Gun Rights and Federalism, Jurist.org
  3. Michal Krajewski, ‘Conditional’ primacy of EU law and its deliberative value: An imperfect illustration from Tarricco II, European Law Blog
  4. Dimitry Kochenov, Laurent Pech, Kim Lane Scheppele, The European Commission’s Activation of Article 7 : Better Late Than Never, EU law Analysis
  5. Ruthann Robson, Ninth Circuit Finds Presidential Travel Ban 3.0 Unlawful, Constitutional Law Prof Blog
  6. Maxime St-Hilaire, Alexis Wawanoloath, Stephanie Chouinard, Marc-Antoine Gervais, The refusal by some to recognize mandatory bilingualism at the Supreme Court is indefensible and breeds its own sort of colonialism, Policy Options Politiques
  7. Ann Applebaum, Poland is illegally dismantling its own Constitution. Can the E.U. do anything?, The Washington Post
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Published on December 25, 2017
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Developments in Czech Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Czech constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


Martin Kopa, Assistant Professor at the Law Faculty of Palacký University, Olomouc; Maxim Tomoszek, Assistant Professor at the Law Faculty of Palacký University, Olomouc; Zdeněk Červínek, Junior Lecturer and Doctoral Researcher at the Law Faculty of Palacký University

I. Introduction

Last year was constitutionally rich in the Czech Republic. The process of gradual replacement of Justices of the Constitutional Court (hereinafter “the Court”), which lasted for several years, was completed and thus all current Justices have been appointed by President Zeman. Both constitutional scholars and the general public impatiently awaited several of the Court’s decisions. We analyze four of them below. But it was not just the case-law of the Court that mattered. There were controversies of constitutional relevance which became points of wide public debate. We chose one of them for further analysis in part III of this report: a draft bill to constitutionally acknowledge the people’s right to bear arms.

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Published on December 24, 2017
Author:          Filed under: Developments