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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

What’s New in Public Law

Vicente F. Benítez R., Constitutional Law Professor, Universidad de La Sabana (Colombia) and LL.M. student at NYU

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 Colombian Constitutional Court held that the Atrato River possesses rights, and ordered the Government to take measures to avoid its destruction by illegal mining.
  2. The Romanian Constitutional Court upheld a statute that prohibits people with criminal records to be Government members.
  3. The Constitutional Court of Kuwait rejected a claim that challenged the validity of the November 2016 parliamentary elections. The Court accepted only one petition out of 52, replacing one MP.
  4. The Indian Supreme Court hears a challenge to biometric authentication system.
  5. The Indian Supreme Court upheld death sentences for four men who fatally raped a woman in 2012.  
  6. The South African Constitutional Court holds a hearing on the conditions for a vote of no confidence against the President, concerning to the use of a secret ballot.
  7. The Constitutional Court of Moldova partially struck down a provision that allowed the Government and Parliament to annually adjust the judiciary’s salaries on a discretionary basis.
  8. The Constitutional Court of Moldova ruled unconstitutional the Russian military occupation of its territory, in the interpretation of Article 11 of the Constitution (Application 37b/2014) on permanent neutrality of Moldova.
  9. The Supreme Court of Nepal reinstated Chief Justice Sushila Karki.
  10. The U.S. Supreme Court ruled that Miami can sue to banks over predatory loans.

In the News

  1. The President of Venezuela Nicolás Maduro issued a decree calling for a constituent assembly to enact a new constitution, in the wake of the daily demonstrations against his regime.
  2. The National Assembly of Zimbabwe is to discuss an amendment proposal that would establish a presidential power to appoint the Supreme Court’s Chief Justice without the intervention of the Judicial Service Commission.
  3. The President of Poland Andrzej Duda called for a referendum, arguing that the people have the right to update and decide their constitutional arrangements.
  4. A prominent Thai human rights lawyer was criminally charged for allegedly insulting members of the royal family.
  5. The U.S. President Donald Trump signed an executive order to allow churches more opportunity to engage in politics.
  6. The Network of the Presidents of the Supreme Judicial Courts of the European Union issued a statement on Polish authorities’ interferences with the judiciary.
  7. Puerto Rico filed for bankruptcy protection under Article 3 of PROMESA, a special law passed to handle its significant debt.
  8. Georgian Parliament passed draft amendments to the Constitution.

New Scholarship

  1. Larry Catá Backer, The Crisis of Secular Liberalism and the Constitutional State in Comparative Perspective: Religion, Rule of Law, and Democratic Organization of Religion Privileging States, Cornell International Law Journal (2015) (discussing the “return” of religion to the public sphere in a comparative perspective)
  2. Rosalind Dixon & David Landau, Tiered Constitutional Design, George Washington Law Review (forthcoming); FSU College of Law, Public Law Research Paper No. 839 (2017) (exploring a “tiered constitutional design” model, and the ways in which it could help combat anti-democratic tendencies in contemporary constitutionalism)
  3. Oran Doyle & David Kenny, Constitutional Change and Interest Group Politics: Ireland’s Children’s Rights Referendum, in Richard Albert, Xenophon Contiades and Alkmene Fotiadou (eds.), The Foundations and Traditions of Constitutional Amendment (2017) (scrutinizing a case of formal constitutional change to judicial doctrine, and the problems of public understanding involved)
  4. Julio Ríos-Figueroa & Paloma Aguilar, Justice Institutions in Autocracies, Democratization (2017) (discussing the role of justice institutions in autocracies, and offering a theoretical framework to analyse their function)
  5. Tracy Robinson & Arif Bulkan, Constitutional Comparisons by a Supranational Court in Flux: The Privy Council and Caribbean Bills of Rights, The Modern Law Review (2017) (examining how the Judicial Committee of the Privy Council makes comparisons to solve idiosyncratic questions that arise across multiple constitutions within its jurisdiction, and particularly the opening section of the Caribbean constitutional bills of rights)
  6. Joshua Segev, The (unified?) Fiduciary Theory of Judging: Hedgehogs, Foxes and Chameleons, Faulkner Law Review (2017) (offering an account of the judge-as-fiduciary model in Anglo-American constitutional tradition)
  7. Silvia Suteu, Eternity clauses in post-conflict and post-authoritarian constitution-making: Promise and limits, Global Constitutionalism (2017) (reflecting on the challenges and opportunities for eternity clauses in transitional regime constitution-making)

Calls for Papers and Announcements

  1. The Institute for Comparative Federalism of Eurac Research in Bolzano-Bozen (South Tyrol, Italy) invites interested scholars to apply for the Federal Scholar in Residence Program that aims to enhance the comparative study of federalism and regionalism. The deadline for applications is July 1, 2017.
  2. The INTRAlaw (INternational and TRAnsnational tendencies in LAW) Research Centre invites submissions for its forthcoming conference on “Law in transition – Interacting legal orders and changing actors,” to be held on September 28-29, 2017, in Aarhus, Denmark. The deadline for proposals is June 1, 2017.
  3. The University of Milan, in association with the Associazione Italiana di Diritto Comparato (AIDC), the Diritto Pubblico Comparato ed Europeo Association, and the Younger Comparativists Committee (YCC) convenes a conference on “The Separation of Powers: A Global Constitutional Dialogue,” which will take place on May 22, 2017.  
  4. The University of Melbourne and the University of Cambridge organizes a conference on “The frontiers of Public Law” that will take place from 11-13 July, 2018. The deadline for submissions is August 25, 2017.   
  5. The Younger Comparativists Committee of the American Society of Comparative Law (YCC) welcomes submissions to fill a panel on “New Perspectives in Comparative Law” to be held at the Society’s 2017 Annual Meeting in Washington D.C., on October 26-28, 2017. The deadline for submissions is June 26, 2017.
  6. Cornell Law School accepts papers for its “Annual Conference on Empirical Legal Studies” to be held on October 13-14, 2017. The submission deadline is June 23, 2017.

Elsewhere Online

  1. Richard Albert, Haiti should relinquish its sovereignty, The Boston Globe
  2. David Cameron, Beneath the Macron landslide, a disenchanted and divided France, Yale MacMillan Center
  3. Sanford Levinson, The further decay of our constitutional order: Reflections on the passage of Trumpcare, Balkinization
  4. Tomasz Tadeusz Koncewicz, Living at Times of Politics of Resentment: Of Unconstitutional Capture, Hope for Constitutional Fidelity and Challenge of “Doing Europe”, Hungarian Europe Society Blog
  5. Gábor Halmai, Much Ado About Nothing? Legal and Political Schooling for the Hungarian Government, Verfassungsblog
  6. Bal Kama, Christianising Samoa’s constitution and religious freedom in the Pacific, Devpolicy Blog
  7. Marina Aksenova, Achieving Justice Through Restorative Means in Colombia: New Developments in Implementing the Peace Deal, EJIL: Talk!
  8. Dan Westbury, Clive Palmer and the bankruptcy ‘Star Chamber’? The granting of powers of inquiry to courts under Ch III of the Constitution, AUSPUBLAW
  9. Ito Peng, Two East Asian Approaches to Care, OxHR
  10. Pierre de Vos, Why it is unlikely the court will review and set aside the cabinet reshuffle, Constitutionally Speaking
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Published on May 8, 2017
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“Constitutional Dismemberment” and Political Crisis in Brazil: Populism in Sight?

Juliano Zaiden Benvindo, University of Brasília

Jon Elster once wrote that “… the task of constitution-making generally emerges in conditions that are likely to work against good constitution-making.”[1] Passion – as he puts it – prevails over reason in such turbulent circumstances. When it comes to other forms of substantial constitutional change, such as what Richard Albert has recently called “constitutional dismemberment,” whose purpose is “to unmake the constitution” by passing a change that “is incompatible with [its] existing framework,”[2] do Elster’s words also apply? Brazil, which passed through a traumatizing impeachment process of President Dilma Rousseff in August 2016, is still facing a major political crisis. At this very moment, over one hundred political figures are under investigation for corruption at the Supreme Court, a situation Foreign Affairs perfectly described as “Brazil’s Never-Ending Corruption Crisis.”  As dramatic as this political crisis is, constitutional change is gathering pace as rarely since democratization in 1985, affecting areas that have been historically deemed to constitute the social core of the 1988 Constitution. An extensive overhaul of the national pension system, as set out in the constitutional text, is about to be voted on in Congress. Labor legislation is also being attacked. All this follows an already passed constitutional amendment which freezes federal spending for two decades, only allowing increases according to the previous year’s rate of inflation. Elster’s words thus seem to be a good match for Brazilian reality, but isn’t it paradoxical that a sort of “constitutional dismemberment” takes place exactly when the political system is sinking fast?

It is true that “constitutional dismemberment,” according to some of Richard Albert’s examples,[3] can take place in seemingly stable contexts and be the outcome of calculated steps that, through distinct means, radically modify the constitutional text. The cases of the Japanese Constitution’s Peace Clause,[4] and Canada’s Constitution Act of 1982, for instance, would possibly qualify as such. But, like typical processes of constitution-making, sweeping and structural modifications to the constitutional framework seem to be more easily introduced in such circumstances of crisis, when passion and reason – to use Elster’s terminology – are clashing with each other. The case in Brazil is of particular interest, because such changes are taking place amid a soaring antipolitical sentiment and through technocratic means. While there is a deepening distrust of politics in society, the political sphere is passing legislation without any serious democratic debate and through a typical top-down process of decision-making. Using a discourse of economic rationality sold by some pundits and members of an extremely unpopular government, these changes are sold as a necessary safeguard for the Brazilian future and which must be passed urgently. There is no discussion of whether these changes would disrupt some of the commitments of the Brazilian Constitution aimed at improving and guaranteeing social rights to its most vulnerable populations. Perhaps one could argue that the constitution must be modified to face some real fiscal challenges in realizing those social rights, especially in a context of economic downturn. However, these changes – as Marcelo Medeiros, one of the greatest researchers on inequality in Brazil, argues – “impose undue constraints on the poorest, create an unfair pressure on women, and grant privileges to influential groups.”

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Published on May 6, 2017
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Conference on “The Separation of Powers: A Global Constitutional Dialogue” at the University of Milan, May 22, 2017

Richard Albert, Boston College Law School

Antonia Baraggia (Milan), Luca Vanoni (Milan), Cristina Fasone (LUISS) and I are convening a conference on “The Separation of Powers: A Global Constitutional Dialogue.” We will gather at the University of Milan on Monday, May 22, 2017, at Sala Napoleonica, via Sant’Antonio 12.

The conference is inspired by the late Giovanni Bognetti’s important book on “La Divisione dei Poteri” (Giuffré, 2001). The English edition of the book will be launched at the conference under the title “Dividing Powers: A Theory of the Separation of Powers” (Wolters Kluwer, 2017).

The program is copied below. All are invited to attend. To register for free, please click here.

Questions may be directed to Antonia Baraggia by email at antonia.baraggia@unimi.it.

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Published on May 5, 2017
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Populist Constitutionalism

Paul Blokker, Charles University in Prague

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Populist engagement with constitution-making and constitutional reform forms a distinctive, and in significant ways worrying, tendency. Populism is explicitly present in the constitutional politics of the East-Central European countries of Hungary and Poland (but not reducible to East-Central Europe), and is causing important tensions in the European Union, which proclaims to be grounded in the values of democracy, the rule of law, and fundamental rights. Concern about the populist-constitutional phenomenon has stimulated lively debates on democratic backsliding and illiberal democracy in Europe as well as on the supranational monitoring of democracy.[1]

Populism is generally seen as in great tension with constitutionalism, that is, populism rejects the modern constitutional order tout court or, at best, relates to constitutionalism in an opportunistic way. In my view, however, concurring here with Jan-Werner Müller, a distinctive populist approach to constitutionalism warrants further investigation.[2] There at least three different reasons for this. First of all, the idea of popular sovereignty is central to populism, but the people’s will is equally the ultimate legitimation of modern constitutionalism. Indeed, the modern constitutional tradition is grounded in both order and self-limitation, and popular self-government.[3] What is specific is that populists claim that the principle of popular sovereignty is insufficiently guaranteed in liberal-constitutional regimes. Secondly, populism engages in legal skepticism, or what I have elsewhere called legal resentment,[4] that is, populists are both highly critical of liberal or legal constitutionalism and they endorse alternative constitutional projects. Populist constitutionalism can thus be understood as a critical countercurrent.  Following from this, thirdly, populism frequently engages in projects of constitution-making and constitutional reform. Populists in power engage in intense reform (and abuse) of the existing constitutional arrangements, in contrast to the idea that populism consists of a merely oppositional, anti-political phenomenon.

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Published on May 4, 2017
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Judges Speaking for the People: Judicial Populism Beyond Judicial Decisions

Diego Werneck Arguelhes, Getulio Vargas Foundation Law School (FGV Direito Rio — Brazil); Information Society Project, Yale Law School (Spring 2017)

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

We typically think of courts as victims or targets of populist politics, however we define the latter. Staffed by elites appointed by previous governments, high courts are indeed obvious targets for populist leaders on the rise. To preserve their authority against such threats, courts might adjust their decisions to trends in public opinion, or perhaps “go public” and speak out to the people, adopting public relations strategies to make it harder for politicians to ignore or retaliate against their decisions.[1] In this post, however, I want to sketch an alternative scenario. As general dissatisfaction with representative institutions increases, instead of simply reacting, courts might actively pursue a populist path themselves and claim to speak for the people.

General disillusionment with the political establishment is a key ingredient fueling populist leaders and movements. To some extent, going against the establishment and making claims to (better) represent the people is part of electoral politics.[2] Amidst general disillusionment, however, courts can take the lead, beyond publicly defending judicial authority against political attacks. Adopting the populist vocabulary, they can claim to represent and vindicate current majority sentiment against corrupt establishment politicians.

Consider the case of Brazil. Since the mass protests of 2013, the country has been in a deep political crisis, and support for representative institutions has reached abysmally low levels.[3] From 2014 on, more and more political leaders from different parties, including all living former presidents since democratization and eight members of President Temer’s cabinet, have been investigated or prosecuted within the Operação Lava Jato (“Operation Car Wash”); the Speaker of the House of Representatives, Eduardo Cunha, was even removed from office by the Supreme Court.[4] To this mix, we add an economic crisis (from 2015 on), the controversial impeachment of President Rousseff in late 2016, and a pending lawsuit in which the Superior Electoral Court is being asked to void the 2014 presidential election due to bribes and illegal campaign funds. This political climate, beyond whatever effects it might have had on the substance of judicial decisions, seems to have influenced judicial self-presentation before the public.

Sérgio Moro, a federal trial judge in charge of criminal lawsuits within the Lava Jato framework, has been the only public figure with a consistently high (above 50%) approval rate amidst the crisis.[5] After mass street protests in March 2016 in which his name and face were visible on the shirts of many protesters, Moro issued a public statement thanking people for their support and explaining that Lava Jato was the work of many different authorities. But he also added: “It is important that elected authorities and political parties listen to the voice of the streets and also commit themselves to fighting corruption.”[6] One year later, Moro would release a short video, posted on a Facebook page maintained by his wife, thanking people once again for supporting Lava Jato. Moro has been an early supporter of judges and prosecutors adopting strategies to enlist public opinion to support judicial decisions against white-collar organized crime.[7] However, these recent manifestations – their symbolism, their vocabulary, the focus on the judge as a person and her direct connection to public demands – would seem to go beyond an institutional strategy to buttress judicial authority.

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Published on May 4, 2017
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Working Well Is The Best Strategy: Judges under Populism

Juan F. González-Bertomeu, ITAM (Mexico)

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Introduction: foes of all stripes

Let’s start with this truism—no administration, populist or not, wants courts meddling with them and checking on their power. Administrations often react to what they see as hostile decisions made by courts. These reactions may take a form that is congenial with political deliberation—courts in a democracy need to be scrutinized and criticized—but sometimes reach beyond, particularly in contexts of relatively weak institutions. Within these contexts, it is anything but rare to observe an administration, even a non-populist one, trying to curb judicial institutions, particularly as the latter become more “aggressive” in its decisions against the former. As a matter of fact, an administration may usually have the upper hand. While its head-on or more sweeping attempts will likely fail in the presence of a vigorous political opposition or a vigilant society, there are myriad ways to undermine courts, some easier to monitor than others.

At the institutional level, the repertoire includes drastic measures such as the stripping of a court’s jurisdiction, the expansion of a court’s membership to pack it with acolytes, and the creation of a new body to control an old one, but also less sweeping ones such as budgetary decisions that may obstruct courts’ ability to function effectively and the under-enforcement of decisions (some of these may also be adopted with more innocuous purposes). At the individual level, the list includes the impeachment of judges, again a drastic measure, and the pressure put on them at the edge of, or beyond, what a society considers the “normal” interplay of democratic institutions. The possibilities are many.[1]

Populism and courts

Therefore, what characterizes populist regimes’ in their relation to courts is not necessarily their belligerent stance against the latter but, rather, their usually more direct confrontation with them when not under their control. A number of factors explain this difference of degree. Stable political parties in government will likely be still around after they leave office, so their cost-benefit calculations need to account for that. Anything they do to other parties while in power they may come to regret when in the opposition. In contrast, populist regimes are usually a reaction to traditional party politics.[2] Their leaders tend not to belong to a party that has shared power with others in the past. Thus, there is no guarantee they will survive the leader, and there is no expectation that they will go on to play the competition game with other parties in the long-run, after they leave office. Consequently, the incentives to discount the future are very high.[3]

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Published on May 4, 2017
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In Defense of Judicial Populism: Lessons From Colombia

Jorge González-Jácome, Stanford University and Universidad de los Andes

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Introduction

In 2005, the Colombian Constitutional Court upheld an amendment allowing presidential reelection. An extremely popular President elected for the 2002-2006 period, Álvaro Uribe, was behind the reform. The Court’s decision was highly controversial because one of the goals of the 1991 Constitution was to check the powers held by the Colombian President since 1886. For some, the Court’s decision was a concession to a populist authoritarian President that had dangerously concentrated power in his hands.[1]

Although the Court was not aggressive reviewing the amendment allowing reelection, in this piece I argue that the Court had other strategy to check Uribe’s powers. The tribunal avoided direct clashes with an extremely popular President, and strengthened its political agenda to challenge the government. I also show that one of the ways to resist populist authoritarianism, as the Colombian case shows, is through the consolidation of a rival political project, led by the Constitutional Court, and with a populist undertone.

Populism and contemporary politics

Populism has generally risen as a response to the conflictive conditions of the modern industrial world. In the early twentieth century, the clash between labor and capital– worried many thinkers and leaders around the world. Populist leaders appeared in this juncture highlighting how national reconstruction could avoid social disintegration. Populist nationalism became one of the antidotes against class struggle: leaders reimagined and rebuilt the political space around a set of common ideas about the nation to avoid conflicts.[2]  Even currently, one of the main problems for contemporary populist leaders is the recasting of the nation in the face of diversity and pluralism.[3]

For some political thinkers, populism is an inevitable feature of the political.[4]  Current societies are formed by many groups and individuals who have multiple political demands and that can be hardly articulated around a coherent agenda. Our identities are structured around class, sexual orientation, race, economic interests, religion, among others. In each realm our demands to the political body are shared only with partial groups of the body politic.[5] Political parties cannot articulate this plurality and populism represents the attempt to build an agenda encompassing the wide array of demands of our political communities; this agenda generally lacks ‘coherence’ and draws lines between those who are part of the nation’s reconstruction and those who are not.[6] The intensity with which these lines are drawn, as well as the possibility of moving across the lines, determine whether a populist agenda drifts close or afar from authoritarianism.

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Published on May 3, 2017
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Populism and the Turkish Constitutional Court: the Game Broker, the Populist and the Popular

Bertil Emrah Oder, Koç University Law School (Istanbul)

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Introduction

Populist strategies have for some time been an integral part of Turkish political life employed dominantly by the right wing political parties.[1] Appealing to a “national will”, populists in Turkey typically embrace the genuine citizens who are forced to abandon their original cultural identity particularly as Muslims by the bureaucratic elite with its belief in secularization and reform.[2]

After transition of Turkey into the multiparty system and adoption of competitive elections, the Democrat Party (DP) first deployed this populist discourse in 1950s, successfully mobilizing the masses against the bureaucratic, statist and secularist elites. The legacy of the DP has been taken over by the succeeding conservative right parties and their leaders, such as Demirel, Özal and Erdoğan. Their indisputable electoral success supported by the populist discourse and policies has shaped contemporary Turkey. Demirel and his Justice Party (AP) complemented the national will discourse with calls for economic development and the “Great Turkey” slogan in 1970s. Özal’s and his Motherland Party’s (ANAP) neoliberal populism emphasized market oriented economic reforms and the empowerment of middle class after the coup in 1980.[3] Erdoğan and his Justice and Development Party (AK Party) have portrayed themselves as the protector of the victims suffered by ignorant, secularist, unwise or corrupt policies of previous governments in 2000s. Leaving aside the recent illiberal discourse in Turkey, the AK Party has initially combined the democratization, Europeanization, majoritarian, and religiously sensitive discourse with the anti-establishment argument of populism.[4] It has still the core claim for an exclusive representation for the “nation” against elites dynamically redefined according to the context.

Turkey’s right wing leaders have constantly represented the dominant political preference of the voters after 1950s. As the “people’s authentic representative”, they have regularly claimed to be free from the limits and checks of the bureaucratic elite. This point is the key to identify the complex relationship between populism and democratic politics in Turkey which suffered from overt and subtle forms of military tutelage especially after 1980. It points out difficulties to draw a line between democratic politics, which should be free from military and any other tutelage, and the populist politics refusing a real sense of checks and balances. In fragile democracies like Turkey, the anti-tutelage argument can easily mask the illiberal populism which usually leads to polarization and resentment politics, colonization of institutions and the suppression of civil society. Here, welfare policies and state funds can easily serve populism to fuel mass clientelism.

Demands for “being free from external limitations” are the major cause of the conflict between the Constitutional Court and the conservative right governments of Turkey. They have defined the elite not only as alienated modernists, secularists, supporters of the state-centered economy, the (Westernized) middle class or wealthy industrialists, but also as judges. Being a counter majoritarian institution, the Constitutional Court has been mostly perceived as another tutelage body confining the national will illegitimately, ever since it was established after the 1960 military coup. The activist case-law of the Court in critical policy preferences, which is sometimes extensively politicized and lack of the sound legal argumentation, has strengthened this image.

Until the 2010 constitutional amendments, the Constitutional Court has frequently clashed with powerful and populist governments in high-profile cases as a game broker. However, after the 2010 constitutional amendments which have reshuffled the Court and the Supreme Council of Judges and Prosecutors, it has increasingly provided judicial support for populist policies. The 2010 amendments have reregulated the number, term limits, selection procedure and eligibility criteria of constitutional judges. While governmental circles presented it as the “rule of law reform” against tutelage, the opponents voiced the concerns of court-packaging and judicial independence. In the meantime, the Court’s reputation as a “defender of defenseless” in human rights litigation has risen. This is triggered in 2012 by the introduction of an individual complaint procedure for the constitutional rights guaranteed also under European Convention of Human Rights (ECHR).

In following observations, I address these changing roles of the Court from a game broker to a popular figure. The future image of the Court in the face of recent presidentialism amendment in Turkey is discussed in the conclusion.

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Published on May 2, 2017
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What’s New in Public Law

Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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

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

Developments in Constitutional Courts

  1. The U.S. Supreme Court refused to hear an officer-involved shooting case.
  2. The U.S. Supreme Court ruled that civil claims against an individual employed by a tribe do not implicate the tribe’s sovereign immunity.
  3. The Supreme Court of India held that income accruing from Formula 1 races is taxable.
  4. The Court of Appeals in Kuwait upheld the government’s decision to increase the price of petrol.
  5. The Federal Court of Malaysia found the 1988 amendment to the Constitution that checks the powers of the judiciary “contrary to the basic structure of the supreme law of the land.”
  6. The Supreme Court of Cyprus is set to hear a challenge to the contentious “Enosis” bill, transferring the power to set school celebrations from parliament to the government.
  7. The European Court of Justice found pirate streaming illegal because it violates copyright protection directive.

In the News

  1. South Sudan is to draft a new constitution.
  2. The main opposition party in Turkey will challenge the country’s recent referendum in the European Court of Human Rights, after the Council of State rejected its appeal against referendum results.
  3. The State Constitutional Commission of Georgia proposed new constitutional amendments.
  4. Paraguay’s Congress rejected a constitutional amendment that would have allowed for presidential re-election.
  5. Israel appoints the first woman to serve as a judge, or a qadi, on a Muslim religious court.
  6. India approves law banning discrimination against AIDS patients.
  7. In Ireland, an amendment is being considered to abolish strict abortion rules.
  8. The National Rifle Association (NRA) challenges expanded gun control laws in California.

New Scholarship

  1. Richard Albert, Constitutional Reform in the Caribbean, 16 Election LJ (forthcoming 2017) (reviewing some of the constitution-level electoral reforms proposed in Caribbean countries and inviting scholars to engage more closely with the region)
  2. Alexandra Bruce, The Exercise of Constitutional Rights, a Crime Punishable by Death (2017) (scrutinizing prosecutors’ use of the death penalty to maintain leverage in capital plea bargaining)
  3. Erwin Chemerinsky and Michele Goodwin, Abortion: A Woman’s Private Choice, 95 Texas L. Rev. (forthcoming 2017) (discussing the uncertainty about abortion rights and providing a constitutional foundation and defense for their protection)
  4. Gabriele Lattanzio, Shari’a Law and Economic Growth (2017) (examining the effects of the introduction of an ornamental constitution including a Shari’a as a Source of Legislation clause on Saudi Arabia’s economic growth)
  5. Julia Grabowska, Forced Evictions: Racial Persecution and Social Exclusion of the Roma Minority in Romania (2017) (proposing a new legal framework for the European Court of Human Rights to adopt in adjudication of cases concerning forced evictions of vulnerable minorities)
  6. Leslie Johns, The Design of Enforcement: Collective Action and the Enforcement of International Law (2017) (providing inductive evidence that the European Union is more likely to enforce EU laws that generate diffuse benefits, while private actors and governments are more likely to enforce EU laws that generate concentrated benefits)
  7. Mattias Kumm, Jonathan Havercroft, Jeffrey Dunoff and Antje Wiener, The End of ‘the West’ and the Future of Global Constitutionalism, 6 Global Constitutionalism (2017) (considering the implications for the future of Global Constitutionalism)
  8. Patrick Macklem, The Constitutional Identity of Indigenous Peoples in Canada: Status Groups or Federal Actors? (2017) (identifying institutional and normative challenges that status group pluralism and federalism pose in the context of constitutional recognition of Indigenous governing authority)
  9. Shruti Rana, The Global Battle Over Copyright Reform: Developing the Rule of Law in the Chinese Business Context, 53 Stan. J. of Int’l L. (2017) (providing a comparative analysis of China’s reforms of copyright law, with reference to regimes in the United States, Japan, and Taiwan)
  10. Albert Sanchez-Graells, Competition and State Aid Implications of ‘Public’ Minimum Wage Clauses in EU Public Procurement after the Regiopost Judgment, in A Sanchez-Graells ed. (2017) (assessing the use of public procurement to enforce labour standards from a competition and State aid perspective, with a focus on the establishment of contract compliance clauses)
  11. Anikó Szalai, Same Target from Different Angles? Anti-Discrimination, Protection of Minorities and the Rights of Indigenous Peoples in the UN, Pécs Journal of International and European Law (2014) (showing the evolution of three different angles to protection against discrimination, and discussing whether they could be integrated into one regime)
  12. Katharina Isabel Schmidt, Henry Maine’s ‘Modern Law’: From Status to Contract and Back Again?, American Journal of Comparative Law (forthcoming 2017) (conducting an assessment of Henry Maine’s “from Status to Contract” thesis in light of two essentially modern phenomena: contract standardization and relational contracting)

Call for Papers

  1. Faulkner Law Review invites proposals for its ninth volume. The theme of the volume will be “The Role of the Executive in the Anglo-American Legal Tradition.”
  2. The International and Transnational Tendencies in Law at Aarhus University hosts a two-day workshop on “Business and Human Rights” to be held on 2-3 October 2017.
  3. The PluriCourts Centre of Excellence at Oslo University and the Europa Institute, Leiden University invite submissions for a Conference on the “Legitimacy of Unseen Actors in International Adjudication” to be held in Hague in October 2017.
  4. The University of Oklahoma College of Law invites papers for the first Natural Resources Law Teachers Workshop on July 22, 2017. The submission deadline is May 31, 2017.
  5. The 2017 Junior IP Scholars (JIPSA) Workshop to be held at Gonzaga University School of Law June 2-3, 2017, invites submissions.
  6. The Scuola Superiore Sant’Anna School of Advanced Studies invites applications to its Ph.D. program in Individual Person and Legal Protections. The deadline for applications is June 15, 2017.

Elsewhere on Blogs

  1. Vicente F. Benítez-R., Judicial Review of Constitutional Amendments in Times of Peace: The Colombian Case, IACL, AIDC Blog
  2. Joaquín Urías, The Spanish Constitutional Court on the Path of Self-Destruction, Verfassungsblog
  3. Noah Feldman, Church playground case is a constitutional seesaw, DailyComet
  4. Louis Fishman, Wounded but Alive: It’s Not Yet Game Over for Turkey’s Democracy or Its Resistance, HAARETZ
  5. Nancy Simons, The Legality Surrounding the US Strikes in Syria, Opinio Juris
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Published on May 1, 2017
Author:          Filed under: Developments
 

Populism and Judicial Backlash in the United States and Europe

Bilyana Petkova, Postdoctoral fellow, NYU School of Law, Visiting Researcher, Yale

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here. Parts of this post are adapted from “Federalism, Rights and Backlash”, International Journal of Constitutional Law (forthcoming, 2017), co-authored with Thomas Kleinlein.]

Common criticisms of judicial activism stretch from the somewhat outdated but nonetheless repeatedly re-emerging argument of courts’ “counter-majoritarian difficulty”[1] to the prevalence of disagreement in plural societies concerning the substance and scope of human rights.[2] Beyond conceptual attacks, however, it is increasingly common to find politicians across the Atlantic who attack courts for decisions with which they simply disagree. Especially the recent resurgence of right wing populism in the United States and Europe makes the old puzzle of judicial legitimacy come to the fore. What should be the position of judges trying to safeguard democratic institutions, while exercising due restraint in the face of majority rule? Beginning to answer this question would require us to parcel out the notion of judicial backlash across two very different functions of the judiciary.

Precedent Setting in Rights-based Adjudication & Issue-Specific Backlash

Somewhat of a modern reiteration of the counter-majoritarian thesis, judicial backlash, primarily theorized in the U.S. constitutional law literature, is the perception that in departing from precedent for the sake of (progressive) rights interpretation, courts sometimes go “too far, too fast”.[3] Doing so, judges are said to deflect important social movement energy from more productive and legitimate channels of effectuating change in a legal status quo. In America, the backlash narrative is primarily associated with a reassessment of the Warren Court’s legacy.[4] Regarding racial desegregation, the ferocity of the conservative reactions that followed the landmark decision in Brown v. Board of Education led prominent commentators – including traditional supporters of a strong federal judiciary and civil rights like Cass Sunstein–to start calling for judicial caution and minimalism. Regarding abortion, Justice Ginsburg has similarly been concerned that “by issuing so bold and far-reaching a decision” in Roe v. Wade the US Supreme Court triggered a bitter and divisive response that “polarized the nation to this day.”[5] In the context of recent gay marriage decisions, the words of Ginsburg, despite of her joining the majority opinion in Obergefell, sounded like an alarm bell for all those who feared that conservatives would once again be energized in the states to resist an item on the progressive agenda – this time marriage equality – and obstruct it with all possible means.

First, it is highly disputed whether majoritarian concerns such as reliance on public opinion or state-level legislative consensus should have played a role in deciding these cases the way they were decided at the time they were decided and whether such concerns should be explicitly incorporated in the doctrine like they are in U.S. Eight Amendment cases (tying the interpretation of “cruel and unusual punishment“ to “evolving standards of decency”).[6] In Europe, the European Court of Human Rights (ECtHR) routinely refers to “emerging consensus” or “societal trends” to either bolster its precedents or defer to a Convention Member State court or legislature. Second, in rights-based adjudication, majoritarian concerns can also play a justificatory rather than substantial role. As Reva Siegel has argued: “…one can acknowledge the importance of public opinion without treating majority support as (1) indispensable or (2) sufficient to sustain a constitutional ruling…”[7] Be that as it may, backlash against the judiciary in this context turns out on issue-specific outcomes of individual court decisions. Popular and democratic constitutionalists[8] may diverge on the meaning and consequences of such issue-specific judicial backlash, suggesting different ways of confronting it. Conversely, the role of and attacks on the judiciary in the context of the separation of powers differs in a non-trivial way. At stake here is systemic failure.

Read the rest of this entry…

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Published on April 30, 2017
Author:          Filed under: Analysis