—Richard Albert, Williams Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin
All are welcome to attend sessions of the Colloquium on Comparative Constitutional Law and Politics, held here at the University of Texas at Austin over the next few months.
All sessions will run from 3:45pm to 5:45pm in the Susman Conference Center at the Law School in room JON 5.206.
I am particularly pleased to host my I-CONnect colleague, David Landau (Florida State), who will present a draft on “Abusive Judicial Review: Courts Against Democracy” on Tuesday, November 12.
I will also host six other scholars: Justin Collings (BYU), Michael Pal (Ottawa), Julie Suk (CUNY), Yvonne Tew (Georgetown), Rivka Weill (IDC-Herzliya) and Andrew Young (Texas Tech). Their paper titles are indicated below.
[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 2019, see here. This post is inspired by the proceedings and discussions at the ‘Gender Equality and Freedom of Religion’ Workshop in Colombo, Sri Lanka. The author would like to thank the Centre for Asian Legal Studies at NUS Faculty of Law, the International Centre for Ethnic Studies (ICES), the Ralph Bunche Institute, and the Special Rapporteur for the Freedom of Religion and Belief, Dr Ahmad Shaheed, and his team for supporting and organizing the Workshop.]
The Easter Sunday bombings have generated fresh attention on religious relations and the delicate task of managing religion in Sri Lanka. Within a month after the bombings, anti-Muslim violence escalated in parts of the country, which eventually led to an extension of the state of emergency and government-imposed bans on social media in a bid to restrict the spread of hate speech, fake news, and incitement to violence. At the same time, there was a strong sense that the state had been slow to react against the violence and protect Muslim minorities from increasing (and organized) persecution and discrimination following the terror attacks in April. In particular, human rights and civil society organizations have highlighted the ways in which right-wing Sinhala-Buddhist groups have continued to lead and perpetrate anti-Muslim mobilization and attacks with a great degree of impunity. The series of events in May 2019 marked the second anti-Muslim riots in Sri Lanka after the political change in January 2015, and with the growing populist and anti-minority discourse in the country, the promise of democratization and rule of law remains difficult to fulfil in the shadow of ethnic politics.
Amidst the ongoing inter-religious tensions, Sri Lankan Muslims are facing another uphill battle that implicates the relationship between law, religion, and politics. It concerns an important issue that has received far less attention globally: the reform of Muslim personal law – the Marriage and Divorce (Muslim) Act 1951 (commonly referred to as the MMDA). Efforts to reform have spanned over three decades, and while a number of committees have been set up at various points in time to study and propose changes to the MMDA, these have not been successful. The most recent attempt at reforming the MMDA, which continues today, emerged from the establishment of a committee by the government in 2009. The constitutional reform process in Sri Lanka – which was among the new government’s key electoral pledges and began in 2016 – breathed new life into debates on MMDA reforms. In 2018, the Marsoof Committee finally submitted its report to the government, but even then it failed to reach a consensus on several key issues, most of which involve women’s rights and interests. This stalemate raises several constitutional issues with regard to the protection of Muslim women in Sri Lanka, but more broadly, they elicit questions about the ways in which the state manages religion, religious freedom, and the right to non-discrimination, particularly for vulnerable groups.
–Matija Miloš, Faculty of Law, University of Rijeka, Croatia
What does it mean to “represent” the electorate? This issue is in the core of ongoing controversies raised by citizens’ initiatives, a form of direct democracy made a part of the Croatian Constitution almost twenty years ago. While direct democracy is normally reduced to an unmediated decision of “the people” and as such opposed to representation, citizens’ initiatives in Croatia have been vitally shaped by conflicting understandings of what representation is and what would remain of it once the initiative is carried through.
Two different understandings of representation dominate in the Croatian case. The first is representation as a political practice of speaking and acting for “the people”. Secondly, representation is understood to be a distinct, ongoing procedure that is constituted by law and can thus be legally separated from processes that may intersect with it. The main actor in shaping both is the Constitutional Court, the result being a form of direct democracy that poorly engages the electorate and simultaneously funnels political disputes, sometimes intensely political, into constitutional adjudication. While the Court emerges empowered, the contours of direct democracy and representation in Croatian law remain hazy.
Drugda, PhD Candidate at the University of Copenhagen
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.
The European Court of Human Rights (ECtHR) held that Russia committed numerous human rights violations against Sergei Magnitsky, a lawyer who died in a Moscow prison in 2009 after complaining of maltreatment.
The Thailand Ombudsman challenged swearing-in ceremony of the PM and government officials before the Constitutional Court. The Cabinet of Prime Minister Prayut Chan-o-cha failed to recite the complete oath of office, omitting the sentence: “I will also uphold and comply with the constitution of the kingdom in every aspect.”
The Supreme Court of Pakistan ordered disciplinary action against a judge who convicted former PM Nawaz Sharif.
The Supreme Court of India will hear challenges to a government order revoking the autonomy of contested Kashmir. The Court also allowed an opposition politician to visit the region that has been under lockdown for weeks.
The Supreme Court of South Korea will consider whether to uphold the bribery conviction of Jay Y. Lee, a Samsung heir, in a scandal that unseated former President Park Geun-hye.
The UN Human Rights Committee found that
Nepal violated Articles 7 and 9 of the International Covenant on Civil and
Political Rights (ICCPR) in a case of a domestic worker, who claimed that he
was tortured and forced to work in Kathmandu from the age of 9.
Lawmakers in China adopted a new
legislation to allow local governments to tax up to 164 resources, including
fossil fuels, minerals and eventually water, at their own discretion.
The Queen of the United Kingdom approved a request
by PM Boris Johnson to suspend the Parliament for almost a month in the run-up
to Brexit. The attempt to suspend the Parliament has been challenged in
The President of Ukraine has submitted to the Parliament
several draft single-subject constitutional amendments, including a proposal to
reduce the number of MPs and introduce citizens’ legislative initiative. The
amendments were flagged as urgent for consideration of the Parliament, which
agreed to expediate the legislative
The Parliament of North Korea approved constitutional
amendment to solidify leader Kim Jong Un’s role as head of state.
A Brazilian congressional committee approved a
proposed constitutional amendment to allow commercial agriculture on indigenous
reserves, a practice that is currently prohibited.
Philippine lawmakers introduced
legislation based loosely on a Netflix political thriller called the
“Designated Survivor” to ensure the country has a president in the case of a
constitutional leadership crisis.
Charles M. Fombad and Nico Steytler (eds), Decentralization
and Constitutionalism in Africa (2019) (exploring the objectives and
impact of decentralization initiatives in Africa and the conditions necessary
for their effective implementation)
The flagship journal of Gujarat National Law
University, the GNLU Law Review invites
submission for its 7th edition. The deadline for submissions is
December 15, 2019.
The European Society of International Law
(ESIL) at the European University Institute (EUI) invites
submissions for a conference on “Solidarity-The Quest for Founding Utopias of
International Law,” to be held on April 23-24, 2020. The deadline for
submission of abstracts is September 20, 2020.
The Rehnquist Center invites
submissions for the third annual National Conference of Constitutional Law
Scholars. The conference will be held at the Westward Look Resort in Tucson,
Arizona, on March 20-21, 2020. The deadline for submission of abstracts is
November 1, 2019.
The WZB Berlin Social Science Center invites
applications for a Research Fellow position (post-doc) at the Center for Global
Constitutionalism headed by Mattias Kumm. The deadline for applications is September
—Theodore Konstadinides, Professor of Law, University of Essex, and Charilaos Nikolaidis, Lecturer in Law, University of Essex
would happen if the Queen decided not to give her assent to a bill properly
passed by the Houses of Parliament? The answer is an unstable and dangerous
situation – a constitutional confrontation or outrage. We are less inclined to
use the term ‘constitutional crisis’ since there is no ultimate
standard that can be used as an indicator that the UK has entered into such a
crisis. And yet one may reasonably rush to identify the elements of a
‘constitutional crisis’ to tell the current story as a legal challenge to stop
the Prime Minister (PM) from proroguing Parliament is being launched in
Edinburgh, Belfast, and London high courts.
carry on from the example that opens this short analysis, the norm that would prevent
a ‘constitutional crisis’ rests in the political tradition, or, to put it in
formal terms, the ‘constitutional convention’, that the Monarch will not refuse
to give her assent to any such bill. Now let us think of a bill which has not
been approved by the House of Commons and goes straight from the House of Lords
to receive royal assent. In that ‘unthinkable’ scenario, the Monarch would have
to refuse giving her assent. The point to be made here is that the Queen does
have a choice in performing her prerogative powers. The reason one may come to
think that the Queen will always agree to what is formally presented to her in
the Parliamentary process is that such a process is properly followed.
But ‘unthinkable’ times call for ‘unthinkable’ reactions.
On June 27, 2019, the Indonesian Constitutional Court rejected the petition of presidential candidate Prabowo Subianto to nullify the presidential election result. All nine justices rejected Subianto’s petition in its entirety, and, the Court reaffirmed the victory of the incumbent President, Joko “Jokowi” Widodo and his running mate, a conservative cleric, Maruf Amin with an 11% lead over the ticket of Prabowo Subianto and Sandiaga Uno. Nowadays, the attention has shifted to Jokowi’s cabinet line-up. Regardless how bold will Jokowi be in appointing the Cabinet ministers, there are still many unresolved unconstitutional issues stemming from the Presidential Election, and many more constitutional issues are awaiting in Jokowi’s second term.
Brazil’s environmental protection going downhill has been recently highlighted by major newspapers. The Economist, on its first cover of August, featured the following headline: “Deathwatch for the Amazon: The Threat of Runaway Deforestation”. The New York Times, just a few days before, published the report “Under Brazil’s Far-Right Leader, Amazon Protections Slashed and Forests Fall”. The French Le Monde followed suit right afterwards: “Deforestation record in Brazil, Jair Bolsonaro’s dangerous game.” And, more directly, The Guardian published an editorial at that same week claiming that “Europe must act to prevent disaster.”. The international media made visible the outcome of a series of governmental attacks on longstanding and rather successful environmental policies in the Amazon’s huge territory. Under President Jair Bolsonaro’s government, an explicit dismantling of Brazil’s mechanisms and institutions of environmental protection is taking place, particularly the National Institute for Space Research (INPE), a well-known and respected governmental agency for monitoring the Amazon region, and the Brazilian Institute for the Environment and Renewable Natural Resources (IBAMA), the anti-deforestation agency for combating in place any threats to the Amazon forest. Yet, such a movement is visibly reckless in face of the strategic position that Brazil holds as one of the world’s greatest agribusiness powers, and especially in view of the recently signed EU-MERCOSUR trade agreement, which sets out a number of obligations on environmental protection and is still in need of approval by the parliaments of MERCOSUR countries (Brazil, Argentina, Paraguay, and Uruguay) and Europe. Is there, in such a move, any political strategy? And what are the possible consequences of such a strategy?
—Ming-Sung Kuo, Associate Professor of Law, University of Warwick and Hui-Wen Chen, Research Assistant, University of Warwick
On 23 August, the Taiwan Constitutional Court (TCC) pronounced the much expected decision on the constitutionality of controversial legislation on pension reform in three Interpretations, namely, Interpretation Nos 781, 782, and 783, which we call the Pension Trio.
As part of President TSAI Ing-Wen’s ‘New Deal’ when she was elected on a platform of reform in 2016, the impugned legislation at the centre of the Pension Trio consists of three separate statutes, each of which governs the state-underwritten pension schemes for armed forces, civil service, and teaching and non-teaching staffs of public schools, respectively. With an eye to turning the three heavily-subsidized and diminishing state-run retirement funds into self-sufficient pension schemes, the impugned legislation in the Pension Trio was amended to cut, inter alia, pension payments to the three groups as noted above, prompting thousands of current and soon-to-be pensioners into legal dogfighting with the TCC as their last hope.
While the TCC struck down a common clause on the ground of equal protection in the Pension Trio, it rejected petitioners’ claims that were based on the doctrine of legitimate expectation and the prohibition against retroactive legislation. All the foundational clauses of the impugned legislation were upheld under the principle of proportionality.
As President Tsai is heading into her
re-election campaign, the TCC—by delivering the Pension Trio—not only concludes an unprecedented legal battle full
of twists and turns but also gives a thumping endorsement to her signature
reform. Is the Pension Trio simply a rubber stamp to the governmental reform
agenda? Is it President Tsai’s eventual
payoff for her earlier judicial appointments?
Does it tell us something about the TCC’s jurisprudence?
–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 email@example.com.
Court of South Africa ruled against historical inequalities in land ownership.
Court of South Africa upheld the prohibition of interim orders in divorce cases.
Constitutional Court of Germany upheld rent control regulations.
The Supreme Court of Hawaii
ruled in favor of the Hawaiian language at school.
Equality Court ruled that display of the apartheid-era flag constitutes hate speech.
The Supreme Court of
Utah rejected a citizen’s petition for medical marijuana.
A federal judge in
Kansas found unconstitutional a law making it a crime to encourage immigrants
to enter or live illegally in the country.
The Supreme Court of
examine if the practice of
divorce through triple talaq is constitutional.
The Italian Government
seeks to form a new coalition.
Ran Hirschl and Ayelet Shachar, Spatial Statism, International Journal of Constitutional Law 17 (2019) (considering how space, place and density impact the conceptualization and utilization of state power in a world of growing complexity and interdependence)
Roger Masterman and Robert Schütze, The Cambridge Companion to Comparative Constitutional Law (Cambridge University Press 2019) (presenting readers with a succinct yet wide-ranging companion to a modern comparative constitutional law course, offering a wide-ranging yet concise introduction to the subject)
Christoph Bezemek, Insult of Public Officials: A Free Speech Perspective, in Frederic Schauer and Adrienne Stone (eds), Oxford Handbook on Freedom of Speech (forthcoming 2019) (analysing free speech from the perspective of the First Amendment of the US Constitution and international human rights law)
The Review of Constitutional
Studies invites submissions
in English and French for its issues 24 and 25. The deadline for submitting a
manuscript for issue 24(2) is November 1, 2019. Submissions for issue 25(1)
will be reviewed on a rolling basis.
The Admin Law Blog calls for
submissions to the blog.
UCL Laws and Luiss Guido Carli
University in Rome organize
a conference on “The Rise of Constitutional
Identity Review in Europe: A Critical Assessment,” to be held on September 12-13, 2019.
King’s College London invites submissions
for a workshop on “Bringing the Human problem back into transnational law:
The example of corporate (ir)responsibility,” to be held on March 19-20,
2020. Paper proposals are due by October 1, 2019.
The Center for Comparative Legal Studies and Post-Conflict Peacebuilding and the Reves
Center for International Studies host
a symposium on “Rethinking Constitutions when Democracy Is under Siege: A
Global Perspective,” on Friday, September 13, 2019.
The 26th IPSA World Congress of
Political Science invites
submission on “Constitutional Transitions to Democracy: Path and Legacies”
for its conference to be held in Lisbon, Portugal on July 25-29, 2020.
The Law and Society Association calls for submissions for its annual meeting
to be held in Denver, Colorado on May 28-31, 2020
Forum on the Future of Constitutionalism
Conference on Constitution-Making and Constitutional Change
The University of Texas Law School Austin, Texas January 17-18, 2020
Submissions are invited from faculty and graduate students for a two-day conference on “Constitution-Making and Constitutional Change,” to be held in Austin at the University of Texas Law School.
The program will feature: (1) concurrent panels in which submitted works-in-progress will be the focus of discussion; and (2) a series of plenary lectures delivered by the Comparative Constitutionalism faculty at the University of Texas at Austin.
This conference is convened by Professor Richard Albert (Texas) and is generously sponsored by The University of Texas Law School.
Subject-Matter of the Conference
Submissions are welcome on any subject of constitutional change, broadly defined, including but not limited to constitutional amendment, constitutional reform, constitutional conventions, constitutional transitions, constitution-making, judicial interpretation and review, unwritten constitutional norms, revolution, and forms of direct democracy including referendums.
Eligibility for the Conference
Submissions are invited from faculty
as well as students enrolled in
graduate programs in various disciplines (including but not limited
to history, law, political science, and sociology). Submissions are welcomed on
any subject related to the conference theme. Submissions may take comparative, doctrinal,
empirical, historical, philosophical, sociological, theoretical, or other perspectives.
The Comparative Constitutionalism faculty at the University of Texas at Austin is diverse across many dimensions including nationality, methodology, jurisdictional focus, and normative commitments but it is lacking in other forms of diversity, most notably gender and racial diversity. The conference will presumptively accept submissions whose authors will diversify the group on those two fronts. It is a goal of the convener, in his capacity as a member of the Appointments Committee, to work towards increasing the diversity of the Comparative Constitutionalism faculty.
of the Conference
The conference will be structured around plenary lectures and concurrent
panels comprised of faculty and graduate students in law, history, political
science, and other fields of interest.
Each of the plenary lectures will focus on different dimensions of the subject of constitution-making and constitutional change. Plenary lectures will be delivered by members of the Law and Government faculties at the University of Texas at Austin, including Sanford Levinson and Gary Jacobsohn.
In addition to the keynote lectures, the two-day conference will feature concurrent panels composed of papers selected from this Call. The purpose of the panels is to convene groups of faculty and graduate students for a high-level discussion on enduring and emerging questions raised by the conference theme. Panels will be chaired by members of the Law and Government faculties at the University of Texas at Austin. These panels will offer participants a combination of rigorous scholarly exchange and group discussion on the ideas in the papers. Conference meals will offer an opportunity for more relaxed social interaction.
Interested scholars should email a title and abstract no longer than 500 words by September 1, 2019 to firstname.lastname@example.org on the understanding that the abstract will form the basis of the pre-conference draft or outline to be submitted by November 15, 2019. Scholars should identify their submission with the following subject line: “Conference on Constitution-Making and Constitutional Change—Abstract Submission.” All materials should be submitted as a single PDF document, and should include at the top of the first page the author’s name, academic title, institutional affiliation, mailing address, and email address. There is no minimum or maximum length for drafts or outlines (to be submitted by November 15), nor are there plans to publish the papers to be presented at the conference.
applicants will be notified no later than September
There is no cost to participate in this conference. Group meals will be generously sponsored by The University of Texas Law School. Participants will also be eligible to apply for reimbursement of their travel costs up to $250.
direct inquiries in connection with this Conference to:
Richard Albert William Stamps Farish Professor in Law and Professor of Government The University of Texas at Austin Email: email@example.com Phone/WhatsApp: +1 617-756-2622
We welcome substantive submissions via email on any subject of comparative public law. Submissions usually, though not always, range from 750 to 1000 words. All submissions will be reviewed in a timely fashion.
Please send submissions to firstname.lastname@example.org.