magnify

I·CONnect

Blog of the International Journal of Constitutional Law

Symposium on The Legacies of Trumpism and Constitutional Democracy in the United States | Part I | Can it Happen–Is It Happening Here?

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a five-part symposium on the state of US constitutionalism after Trump. The introduction to the symposium can be found here.]


Andrea Scoseria Katz, Washington University School of Law

Blaring on the TV as this post is being finalized is the U.S. House of Representatives voting to impeach the President for a second time,a move without precedent in American history. The motivating events, which have kept us glued to the TV for the last few weeks, scarcely need any introduction. On January 6th, the American Congress met for the largely ceremonial task of tallying and approving the vote totals from the fifty states bearing witness to Joe Biden’s victory in the November presidential election. A mile-and-a-half away, Donald Trump—who for months has stoked panic with the false claim that the election was “stolen” from him—told an excited crowd of 8,000, “We will never concede,” and directed them to “walk down to the Capitol” and “fight like hell.” The rioters did as they were told. Storming through police barricades, they streamed into the Capitol as lawmakers fled or barricaded themselves behind doors. The intruders sacked the halls, breaking into offices, smashing windows and doors, destroying furniture and desecrating statues before a delayed backup force of federal guards cleared them off the premises. The rioters left behind debris—signs, flags, gas masks, even feces and urine—and five dead: two policemen and three civilians who perished in the events.

A coup or not a coup? Political scientists on Twitter spent the day tying themselves in definitional knots. A coup with no (overt) military involvement? With no coordination at the top? Carried out by so many individuals milling around in costumes taking selfies? Some of the farcical images admittedly gave rise to inspired moments of black humor: an intruder who stole a lectern may have listed it for auction on eBay. My own view: any lexical confusion is less an issue of democratic theory than a reflection of the vestiges of white supremacy in America, with its temptation to humanize white crime, as well as of the legacy of American exceptionalism. Can it happen here? In this case, seeing is not exactly believing. The minimalist democrat defines democracy as a political regime that channels disagreement awayfrom violence and into fair elections. The minimal constitutionalist defines constitutional crisis as the moment where legal processes fail to contain disagreement, and violence erupts. By either of those definitions, American democracy is in crisis.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on January 20, 2021
Author:          Filed under: Analysis
 

Symposium | Introduction | The Legacies of Trumpism and Constitutional Democracy in the United States

[Editor’s Note: In light of this week’s inauguration, I-CONnect is pleased to feature a symposium on the state of US constitutionalism after Trump. This introduction will be followed by five posts exploring different aspects of the U.S.’s constitutional democracy in comparative perspective.]


David Landau, Florida State University College of Law, and Miguel Schor, Drake University Law School

The election of Donald Trump, the Brexit referendum in 2016, and the rise of populist authoritarianism around the globe spawned a raft of academic work exploring democratic erosion. Americans woke up after the 2016 elections and realized something that citizens in the so-called “developing world” have long known, which is that democracy can be fragile and entails hard work. American comparativists, particularly those working on dysfunctional democratic orders, found their work suddenly enormously relevant to domestic debates.

Scholars sometime divide the world’s democracies into two broad categories. One category is reserved for democracies located primarily in the “developing” world. These are referred to as “flawed” democracies or democracies with adjectives. They have periodic elections but institutions are a poor check on power. They operate along authoritarian pathways as institutions offer few constraints and elites engage in little bargaining. The second category is employed for democracies located primarily in the “developed” world. These are called consolidated democracies. These have elections, a thick civil society, a free press, and robust institutions. Citizens respect elections and elites compromise.

The Trump presidency complicates this picture considerably. Populist authoritarianism made inroads in Trump’s America as loyalty to the leader displaced loyalty to institutions and emergencies were normalized to mobilize supporters and exhaust opponents. Trump, of course, was never able to fully consolidate his power given the multiplicity of sources of authority in the United States. The 2020 election proved enormously divisive as was the case with elections in a great many polities that underwent a small d democratic transition from authoritarian regimes.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on January 19, 2021
Author:          Filed under: Analysis
 

Join the ICON·S Secretariat | Call for Expressions of Interest


The International Society of Public Law (ICON·S) invites expressions of interest to join the Secretariat. The Secretariat consists of a team of scholars who, on a voluntary basis, manage the operations of the Society under the leadership of two Co-Presidents, both supported by one Secretary General and one Deputy Secretary General.

Scholars around the world are invited to express an interest in any of the volunteer positions enumerated below. Positions will take effect officially in July 2021, subject to an onboarding and transition process beginning in or around March 2021 to coincide with the planning and execution of the 2021 Annual Conference of ICON·S. After a mutual trial period of six months, appointments will ordinarily run for a period of three years to coincide with the term of the incoming Co-Presidents.

Expressions of interest are welcome from all scholars and especially encouraged from women, persons from communities traditionally underrepresented in law, and early-career scholars.

Positions

The following positions are available. All descriptions below are only representative of the kinds of responsibilities each position entails; they are not an exhaustive list of those responsibilities.

Please note that only ICON·S members are eligible to apply. An ICON·S membership may be purchased here.

1. ICON·S Director, Chapter Administration and Engagement

ICON·S has many national and regional chapters around the world. The Director of Chapter Administration and Engagement will work in consultation with the Secretary General and Deputy Secretary General to support existing ICON·S chapters, to help build new chapters, to liaise with chapters, and to execute other chapter-related functions.

2. ICON·S Director, Communications and Correspondence

ICON·S communicates directly by email with our membership and indirectly to our membership and the world through its social media channels. The Director of Communications and Correspondence will work in consultation with the Secretary General and Deputy Secretary General to prepare communications with members and others, to manage correspondence with members and others, to disseminate ICON·S activities on social media channels, and to carry out other functions related to communications and correspondence.  

3. ICON·S Director, Technology

ICON·S requires high technological capacity to deliver its programs to our membership and the world. The Director of Technology will work in consultation with the Secretary General and Deputy Secretary General to manage and fulfill the Society’s technological functions in relation to its website and Internet needs, including but not limited to managing the Society’s website and online conference management system.

4. ICON·S Associate(s)

ICON·S may, from time to time, require the assistance of doctoral students and post-doctoral fellows to perform specific tasks to support work of the Society, including tasks associated with each of the three portfolios described above as well as more targeted tasks related to the Annual Conference of ICON·S. The Co-Presidents, Secretary General and Deputy Secretary General invite expressions of interest for these seasonal positions.

How to Express Your Interest

ICON·S members are invited to submit expressions of interest by email to sg@icon-society.org, no later than 15 February 2020.

Expressions of interest should include an academic CV, including a list of publications or a link to the applicant’s publications, as well as a statement of introduction no longer than 1 page specifying the position or positions of interest as well as any experience that may be relevant.

Selection Process

The incoming Co-Presidents, Secretary General, and Deputy Secretary General will review all submissions and will ultimately fill the positions based on their anticipated needs. The incoming Co-Presidents, Secretary General, and Deputy Secretary General intend to build a team that reflects the richness of the diversity of the Society’s membership. Priority will be given to candidates who have participated in the activities of the Society, have acquired experience relevant to the particular portfolio for which they apply, and have demonstrated a commitment to working cooperatively and collaboratively as members of a team.

***

The incoming Co-Presidents, Secretary General, and Deputy Secretary General thank all applicants for their interest.

Print Friendly, PDF & Email
Published on January 18, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


Nakul Nayak, Lecturer at Jindal Global Law School, India.


Developments in Constitutional Courts

  1. The Constitutional Court of Kenya ruled that 3000 families were wrongfully evicted from Mitumba village near Wilson Airport and were to be awarded compensation.
  2. The Supreme Court of India stayed the implementation of three controversial statutes that affect farmers’ interests.
  3. The US Supreme Court has reinstated a rule that women visit a hospital or clinic to obtain a drug used for medication-induced abortions
  4. Indonesia’s Constitutional Court rejected a motion to put content creators on digital platforms like Youtube, Instagram, or TikTok under the same censorship regime as radio and television broadcasters.
  5. The Czech Constitutional Court ruled against a regional court’s proposal to amend a law that prevents same-sex partners registered abroad from adopting Czech children.

In the News

  1. The US House of Representatives impeached Donald Trump for the second time.
  2. The Advocate General of the Court of Justice of the European Union opined that a national data protection authority, even if it is not the lead supervisory authority, can start proceedings against a company for failing to protect users’ data.
  3. Opposition parties and protest groups boycotted a reconciliation committee formed by Thailand’s House Speaker to address issues raised by protesters.
  4. Zimbabwe’s Parliament delays passing the Constitutional Amendment Bill (Number 2).
  5. German political parties agreed to amend the German Constitution (Basic Law) to protect children’s rights.

New Scholarship

  1. Donald Bello Hutt (ed.), Symposium on constituent power, (2020) (examining and engaging with Andrew Arato’s book The Adventures of the Constituent Power: Beyond Revolutions).
  2. Benedikt Reinke (ed.), Symposium on ‘The End of Globalization? – Resurging Nationalism, Authoritarian Constitutionalism and Uncertain Futures of Democracy’ (2020) (examining challenges to democracy, the rule of law, and human rights in the current moment).
  3. Fernanda Cobo & Sofía Charvel, Mexican apex judiciary and its multiple interpretations: Challenges for the constitutional right to health (2021) (examining whether the Mexican Supreme Court is or could be a catalyst for change in the healthcare system).
  4. Su Bian, Labour Constitutionalism: A Critical Genealogy of Constitutionalisation in the ‘Reform’ Period of China (2020) (arguing that many labour-related practices adopted in the post-1978 ‘Reform’ period of China pose serious challenges to constitutional values).
  5. Shrutanjaya Bharadwaj (et al), Rising Internet Shutdowns in India: A Legal Analysis (2021) (analyzing the validity of internet shutdowns in India from the standpoint of the constitutional right to free expression).

Calls for Papers and Announcements

  1. The European China Law Studies Association will hold its annual conference in Warsaw from September 24 to 26, 2021. Abstracts and panel proposals may be submitted by May 30, 2021.
  2. The University of Milan, Department of Italian and Supranational Public Law invites applications for a postdoctoral fellowship on the project “The Transformation(s) of Public Power: the Use of Conditionality in the Global Governance”, with a full-time, fixed-term contract for one year. The deadline for applications is February 4, 2021.
  3. The Faculty of Law at McGill University and the Peter MacKell Chair on Federalism have invited submissions for the 3rd edition of the Baxter Family Competition on Federalism.  The deadline is February 1, 2021.
  4. The University of Birmingham Law School has invited submissions for an online workshop on Constituent Power in Commonwealth Constitutional Legal Systems. Deadline for abstracts is January 22, 2021.
  5. The Journal of Law and Public Policy at the University of St. Thomas Law School seeks contributions for a virtual symposium on Alternative Realities, Conspiracy Theory, and the Constitutional and Democratic Order to be held on April 16, 2021. Proposals are due by February 28, 2021.

Elsewhere Online

  1. The Balkinization blog is currently holding a symposium on Gary Jeffrey Jacobsohn and Yaniv Roznai’s new book Constitutional Revolution.
  2. AfronomicsLaw will host a virtual ceremony to launch a new book edited by James Thuo Gathii titled The Performance of Africa’s International Courts – Using Litigation for Political, Legal, and Social Change.
  3. Kwasi Asiedu Abrokwah, Addressing gender-based violence against women and children in Africa, AfricLaw.
  4. Human Rights Watch published its World Report 2021.
  5. Jan-Phillip Graf, A Childish Idea, Verfassungsblog.
  6. Gautam Bhatia, Notes from a Foreign Field: The Kenyan Supreme Court on Housing, Evictions, and the Right to Land, Indian Constitutional Law and Philosophy.

Print Friendly, PDF & Email
Published on January 18, 2021
Author:          Filed under: Developments
 

Malaysia’s Game of Thrones amid a Pandemic: Constitutional Implications and Political Significance of the State of Emergency

Dian A H Shah, National University of Singapore Faculty of Law

The old Malay proverb “terlepas dari mulut buaya, masuk ke mulut harimau” (literally translated as “out of the crocodile’s mouth, into the tiger’s mouth”) seems to be an apt description for Malaysia in the new year. The government, having just re-implemented stricter restrictions in five states to manage the rapid rise in Covid-19 infections, imposed a nationwide state of emergency on 12 January 2021. This is the second attempt at imposing a state of emergency, which – unlike the first attempt in October 2020 – received assent from the Yang di-Pertuan Agong (YDPA), the constitutional monarch. This time, the government justified its decision on the basis of a threat to the economic life of the nation posed by the Covid-19 pandemic.

To be sure, Malaysia’s resort to emergency powers in dealing with the Covid-19 crisis is not unique – countries such as New Zealand, Japan, The Philippines, and Thailand have previously made such declarations. However, despite assurances from Prime Minister Muhyiddin that the emergency declaration is intended to combat the spread of the Covid-19 infection and that it is not a military coup, nor will it be used to enforce a curfew, there are reasons to be apprehensive. First, during the first wave of infections in 2020, Malaysia has successfully controlled the pandemic through ordinary regulations and laws. Second, the timing of the emergency proclamation suggests that the decision was mainly driven by political imperatives.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on January 17, 2021
Author:          Filed under: Developments
 

International Assistance to Constitution Making between Principle and Expediency

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

In the aftermath of the Cold War many countries underwent political transitions coupled with extensive constitutional changes. Constitution making has also increasingly become a tool for post-conflict peace building. While the phenomenon of international constitutional advisors assisting in constitution making processes is not a particularly recent one,[1] since the early 1990s it has become more frequent and progressively systematized into explicit policy frameworks. The exercise of constitution making, however, presents international organisations with a conundrum when offering expert assistance in the form of constitutional advice.

On the one hand, there is widespread agreement among scholars and international organizations alike that constitutions need to be made according to, and embody in their content, a variety of global norms pertaining to participation, transparency, democracy, fundamental rights, rule of law, international law compliance, and so on. Indeed, a minor cottage industry has arisen around giving countries constitution-making advice along these lines.[2]

On the other hand, a constitution is considered to be legitimate on the ground that it expresses the will of the collective “We the People.” Thus, in order to be legitimate, the constitution should be autochthonous and nationally owned, meaning that it should be local in origin and content: it should express the character, history, and identity of the distinctive community or collective ‘We’ that claims the right to govern itself independent of other communities. It is thus common for constitutions to articulate some kind of national identity, and to define the community responsible for adopting the constitution.[3]

The result is a tension between “constitutional autochthony” and “constitutional borrowing” that manifests itself throughout the standard advice given by scholars, consultants, and international organisations on how constitutions should be written. This tension is exemplified by the Guidance Note of the Secretary-General on United Nations Constitutional Assistance first issued in April 2009 and subsequently revised in September 2020.[4]

The UN Guidance Note merits attention because it illuminates the practical difficulties that modern constitution-making processes face in attempting both to comply with international legal standards and to secure the acceptance of domestic actors. It also shapes the policy frameworks of other UN agencies in matters of constitutional assistance. The 2009 version identifies six principles that should guide international engagement in constitution making:

(1) Seize the opportunity for peace building

(2) Encourage compliance with international norms and standards

(3) Ensure national ownership

(4) Support inclusivity, participation and transparency

(5) Mobilize and coordinate a wide range of expertise

(6) Promote adequate follow-up

There is considerable tension, if not contradiction, between points (2) and (3), which remain unchanged in the 2020 version. While the UN is supposed to encourage new constitutions to adhere to international human rights instruments, it should also ensure that the constitution-making process is nationally owned in order to avoid the impression that the constitution is “imposed” by foreign actors.

The difficulty is in striking the right balance between a nationally-owned process and a legal outcome that is sound in terms of both institutional design and compliance with international standards. The recent experiences of UN-supported constitution-making processes suggest that national ownership tends in practice to take priority, even at the cost of non-compliance with international human rights standards.

Nepal’s most recent constitution-making experience (2008-15) is a case in point. The current 2015 constitution re-introduced citizenship provisions that discriminate on the basis of gender granting Nepali women less rights than Nepali men to transmit citizenship to their children and foreign spouses. The new constitution’s citizenship chapter is in clear contravention of CEDAW and other international human rights instruments to which Nepal is a signatory. Unsurprisingly, the issue of citizenship took centre stage at Nepal’s periodic review before the United Nations’ Human Rights Council in 2015,[5] and the CEDAW Committee in 2018.[6] However, no amendments to the constitution with respect to citizenship have been introduced.

The question of citizenship in Nepal represents a clear instance of divergence from global constitutional practice and international human rights standards, which can only be explained in light of Nepali political elites’ concerns with nation building and the preservation of existing social hierarchies. This is not to say that Nepal is unique or alone in discriminating against women in this area of law, but it is significant that such a recent UN-supported constitution-making process that took nine years has produced in the end a constitution so clearly in breach of international legal standards such as CEDAW and ICCPR.

As the revised 2020 Guidance Note clearly states “the UN […] has a Charter mandate to promote respect for and observance of international norms and standards.” It thus seems imprudent for the UN agencies involved in constitutional assistance to prioritise political expediency over international law compliance, only to leave other parts of the UN system to attempt to remedy such breaches after the constitution has come into force, which is a much more arduous task.[7]

Suggested citation: Mara Malagodi, International Assistance to Constitution Making between Principle and Expediency, Int’l J. Const. L. Blog, Jan. 13, 2021, at: http://www.iconnectblog.com/2020/01/international-assistance-to-constitution-making-between-principle-and-expediency/


[1] See Mara Malagodi, ‘Ivor Jennings’ Constitutional Legacy beyond the Occidental-Oriental Divide’ (2015) 42:1 Journal of Law and Society 102; Symposium Issue: New Dominion Constitutionalism (2019) 17:4 International Journal of Constitutional Law 1166-1300; Coel Kirkby, ‘Commonwealth Constitution-Maker: The Life of Yash Ghai’ in S. Dubow and R. Drayton (eds.) Commonwealth History in the Twenty-First Century 61 (Palgrave).

[2] Tom Ginsburg, ‘Constitutional Advice and Transnational Legal Orders’ (2017) 2 UC Irvine Journal of International, Transnational, and Comparative Law 5. 

[3] Tom Ginsburg et al., ‘We the Peoples: The Global Origins of Constitutional Preambles’ (2014) 46 George Washington International Law Review 101; Chaihark Hahm and Sung Ho Kim, ‘To Make “We the People”: Constitutional Founding in Postwar Japan and South Korea’ (2010) 8 International Journal of Constitutional Law 800.

[4] See Guidance Note of the Secretary-General: United Nations Assistance to Constitution-making Processes (Apr. 2009), at https://www.un.org/ruleoflaw/blog/document/guidance-note-of-the-secretary-general-united-nations-assistance-to-constitution-making-processes; Guidance Note of the Secretary-General on United Nations Constitutional Assistance (Sept. 2020), at  https://peacemaker.un.org/sites/peacemaker.un.org/files/SG%20Guidance%20Note%20on%20Constitutional%20Assistance_2.pdf. See also United Nations Development Programme, ‘Guidance Note on Constitution-Making Support’ (5 February 2015), at www.undp.org/content/undp/en/home/librarypage/democratic-governance/parliamentary_development/GuidanceNote_ConstitutionMakingSupport.html (reiterating the same formula.)

[5] See United Nations General Assembly, ‘Report of the Working Group on the Universal Periodic Review: Nepal’, Human Rights Council thirty-first session, 23 December 2015, available at www.upr-info.org/sites/default/files/document/nepal/session_23_-_november_2015/a_hrc_31_9_e.pdf.

[6] See Committee on the Elimination of Discrimination against Women, ‘Concluding observations on the sixth periodic report of Nepal’, 14 November 2018, available at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CEDAW%2fC%2fNPL%2fCO%2f6&Lang=en.

[7] A more detailed analysis is available in my forthcoming chapter ‘Constitutional history and constitutional migration: Nepal’ in the volume Constitutionalism in Context edited by David Law for Cambridge University Press.

Print Friendly, PDF & Email
Published on January 13, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (Italy) and Academic Fellow, Bocconi University (Italy)


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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Ukraine issued a statement on the presidential decree suspending the Chairperson from judicial office.
  2. The Turkish Constitutional Court ruled on the violation of the right to liberty and security of a journalist arrested after the 2016 failed coup d’état.
  3. The US Supreme Court denied a bid by a Republican congressman to reverse President Donald Trump’s election defeat.
  4. The Alaska Supreme Court will hear a challenge against elections in a state House.
  5. The Supreme Court of Pakistan ordered the government to rebuild a historical Hindu temple that was vandalized and destroyed.

In the News

  1. The joint session of the US Congress certifying Joe Biden’s win was suspended and forced into recess, since violent supporters of President Donald Trump breached the Capitol Hill?.
  2. US Congressional democrats called for immediate impeachment of President Donald Trump.
  3. A new piece of legislation was adopted in the US bringing significant changes in the anti-money laundering regime.
  4. The UN Security Council adopted a new resolution encouraging states to engage more actively in the fight against terrorism.
  5. The EU Commission presented a comprehensive reform setting new rules for digital platforms.

New Scholarship

  1. Simon Chesterman, Artificial Intelligence and the Limits of Legal Personality (2020) International and Comparative Law Quarterly (investigating whether AI systems should be entrusted a status comparable to natural persons)
  2. Tom Ginsburg and Mila Versteeg, The Bound Executive: Emergency Powers During the Pandemic (2020) (arguing that, during the Covid-19 pandemic, domestic executives have not been totally unbound, but courts and legislatures played a significant role in constraining them)
  3. Laurence R. Helfer, Rethinking Derogations from Human Rights Treaties (2021 forthcoming) American Journal of International Law (critically assessing the existing system of human rights treaty derogations and how it has worked in times of Covid-19)
  4. Romain Mertens, Freedom of religion and freedom of demonstration during the Covid-19 Pandemic: a comparative analysis of administrative case law in France and Belgium (2020) Ius Publicum Network Review (examining measures aimed at curbing the Covid-19 pandemic that impact on freedom of religion and of demonstration with a specific focus on Belgium and France)
  5. Alexander Tsesis, Free Speech in the Balance (2020) (providing a comprehensive study of proportional analysis in free speech cases)

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism is launching ConstitutionWorld, a resource to connect scholars of constitutions and constitutionalism all around the world. Scholars of all levels of seniority are welcome to join.
  2. The Graduate Law Students Association of the McGill’s University Law Faculty announced a call for papers on “Law and Cities.” Abstracts are due by January 31, 2021.
  3. The University of Miami will hold a conference on the theme “We Robot 2021.” The deadline for paper proposals is February 1, 2021.
  4. The University of St. Thomas School of Law invites submissions to the Journal of Law and Public Policy for an upcoming Virtual Symposium on “Alternate Realities, Conspiracy Theory, and the Constitutional and Democratic Order.” Proposals are due by February 28, 2021.
  5. The South African Society for Critical Theory invites contributions to a special issue of Acta Academica on “Pandemic Politics.” The deadline to submit papers is February 28, 2021.
  6. The Forced Migration Review launched a call for papers on “Non-signatory States and the international refugee regime.” The deadline for submissions is March 15, 2021.

Elsewhere Online

  1. Richard Avinesh Wagenländer, An Order of Deferential Monism: Why the Bundesverfassungsgericht’s PSPP Ruling Merely Restates the Limits of the EU Legal System, European Law Blog
  2. Mark Elliott, The UK-EU Brexit Agreements and ‘Sovereignty’: Having One’s Cake and Eating It?, Public Law for Everyone
  3. Jeff King, The Prime Minister’s Constitutional Options after the Benn Act: Part II, UKCLA Blog
  4. Robert Liao, Local citizens’ assemblies in the UK: an early report card, The Constitution Unit
  5. Kim Lane Scheppele, Insurrection, Verfassungsblog
Print Friendly, PDF & Email
Published on January 11, 2021
Author:          Filed under: Developments
 

The Afghan Peace Process and the Prospects for Constitutional Change: Can Incrementalism Work?


Shamshad Pasarlay and Ilaria Vianello


On 12 September 2020, representatives from the Afghan government and the Taliban held the first ever direct talks in Doha, Qatar, to negotiate an end to the Afghan conflict. On 15 December 2020, some media outlets published a list of questions both sides wished to discuss during the talks. An “Islamic system of government” and changes to the country’s constitutional order are at the top of the Taliban’s agenda whereas a comprehensive ceasefire is at the heart of the Afghan government’s wish-list. The Afghan government is willing to consider amendments to the 2004 Constitution, but at this initial stage it has been disinclined to discuss constitutional changes. Although both sides have shown different preferences, any long-term solution will require significant constitutional reform.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on January 8, 2021
Author:          Filed under: Analysis
 

Special Announcement: ICONnect Columnists for 2021

David Landau, Florida State University College of Law

The editors of ICONnect are very pleased to announce our new slate of columnists for 2021: Mara Malagodi, Berihun Adugna Gebeye, Armi Bayot, and Juliano Zaiden Benvindo. As always, we are confident that they will provide a diverse and fascinating set of voices for our readers, representing a range of regional and substantive areas of focus.

We would also like to give thanks and express appreciation for our outgoing 2020 columnists — Sofia Ranchordas, Alexander Hudson, Yvonne Tew, and Andrea Scoseria Katz. We are grateful to each of these wonderful scholars for agreeing to serve as columnists last year, and we think you will agree that they added an extraordinary amount to the blog.

The format of the columns is the same as in previous years. The goal is to provide ICONnect with regular contributors who have a distinctive voice and unique perspective on public law. 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. Each columnist will produce one column every two months.

Although we expect that many of our readers already know their work, we append brief bios for each of our new columnists below. Please join us in welcoming them to ICONnect!

Read the rest of this entry…
Print Friendly, PDF & Email
Published on January 7, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law


Simon 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.

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

Developments in Constitutional Courts

  1. The Constitutional Court of Zimbabwe ruled that the country’s national pledge was an unconstitutional violation of school children’s right to freedom of conscience and parental rights.
  2. The Supreme Court of Venezuela invalidated a motion by the National Assembly to extend its term an additional year.
  3. The Constitutional Court of Ukraine invalidated a presidential decree suspending the term of office of the Constitutional Court President.
  4. The website of the European Court of Human Rights was the subject of a cyberattack.
  5. The Constitutional Court of Bosnia and Herzegovina found two measures to contain the spread of Covid-19 unconstitutional – the mandatory use of face masks in the Canton of Sarajevo and a general restriction of movement in the Federation of Bosnia and Herzegovina.

In the News

  1. The National Congress of Argentina passed a law legalizing abortion.
  2. The Parliament of Gabon adopts a new Constitution.
  3. The President of Algeria ratifies a new Constitution.
  4. Belarus will hold a referendum on constitutional change or replacement.
  5. The United Kingdom formally exited the European Union.

New Scholarship

  1. Federico Fabbrini, Brexit and the Future of the European Union: The Case for Constitutional Reforms (2020) (examining how the EU has changed during Brexit and because of Brexit, while also reflecting on the developments of the EU besides Brexit and beyond Brexit)
  2. Justin Collings, Scales of Memory: Constitutional Justice and Historical Evil (2021) (exploring the relationship between constitutional interpretation and the memory of historical evil in the United States, Germany, and South Africa)
  3. Rehan Abeyratne and Iddo Porat (eds), Towering Judges: A Comparative Study of Constitutional Judges (2021) (examining the work of nineteen judges from fourteen jurisdictions, each of whom stood out individually among their fellow judges and had a unique impact on the trajectory of constitutional law)
  4. Adam Bonica and Maya Sen, The Judicial Tug of War: How Lawyers, Politicians, and Ideological Incentives Shape the American Judiciary (2020) (presenting a novel theory explaining how and why politicians and lawyers politicize courts)
  5. Sergio Bartole, The Internationalisation of Constitutional Law A View from the Venice Commission (2020) (examining the work of the Venice Commission and showing how constitutional law in has become increasingly borderless)

Call for Papers and Announcements

  1. The Contemporary Central and East European Law Journal published by the Institute of Law Studies of the Polish Academy of Sciences, invites submissions for its 2nd volume. The deadline for the submission is March 15, 2021.
  2. Birmingham Law School invites submissions for a workshop on “Constituent Power in Commonwealth Constitutional Legal Systems,” due to take place in April 2021. The deadline for submission of abstracts is January 22, 2021.
  3. PopCon project research team at the Aristotle University of Thessaloniki invites abstract submissions for an international conference on “Populist Transformation of Constitutional Law: Populist constitutionalism and democratic representation,” to be held on May 7-8, 2021. The deadline for submission of abstracts is January 10, 2021.

Elsewhere Online

  1. Rivka Weil, Can the Judiciary Guard Democratic Transitions of Power? An Indian-Israeli Perspective, Law and Other Things
  2. Kim Lane Scheppele, Trump’s Endgame – Part I and Part II, Verfassungsblog
  3. Gautam Bhatia, Horizontal Reservations and the Persistence of the Myth of Merit, Indian Constitutional Law and Philosophy
  4. Tatiana Kazim, Can trans children consent to puberty blocking drugs? The High Court of England and Wales doubts it, OxHRH
  5. Lidya Stamper, When policy isn’t enough: Examining accessibility of sexual and reproductive health rights for displaced populations in South Africa, AfricLaw
  6. Po Jen Yap, Proportionality in Asia, British Association of Comparative Law
Print Friendly, PDF & Email
Published on January 4, 2021
Author:          Filed under: Developments