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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law

Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

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 Constitutional Court of Indonesia upheld the threshold (20 percent of the seats at the House of Representatives or 25 percent of the popular vote) for a party or a coalition of parties which is required for political parties to nominate presidential candidates.
  2. The Supreme Court of Canada refused to hear the appeal of a Sikh man and woman who were prohibited from entering Quebec‘s legislature while wearing kirpans (a ceremonial dagger carried by members of the Sikh religion).
  3. Spain’s Supreme Court said it had ended its investigation against 18 Catalan independence leaders who will now face trial, likely at the beginning of next year.
  4. The Supreme Court of the Maldives rejected President Abdulla Yameen’s petition to annul the September 23 election.
  5. The Supreme Court of Papua New Guinea dismissed a case brought by 731 Manus Island refugees seeking enforcement of their constitutional rights, which comes two years after the court had ruled that their detention was unlawful, after which the refugees had applied for compensation and orders they be resettled in another country.
  6. Romania’s Constitutional Court struck down dozens of changes to the criminal code made by the ruling Social Democrats that had been criticized by the European Union, diplomats and magistrates.
  7. The Constitutional Court of Zimbabwe struck down section 27 of the Public Order and Security Act, which gave authorities power ban public demonstrations, as unconstitutional.
  8. The Supreme Court of India referred a matter concerning the appointment procedure of the country’s Election Commissioner to a five judge Constitution Bench, in a case which may have an impact on its already fraught relationship between the executive and the judiciary.

In the News

  1. Hungary passed a law in pursuance of a constitutional amendment in June making rough sleeping a crime and empowering police to order homeless people to move into shelters, which rights advocacy groups say is cruel and does little to address underlying problems.
  2. Egypt’s parliament approved a three-month extension of a nationwide state of emergency, citing “security challenges facing the country and the importance of fighting terrorist movements targeting Egypt.”
  3. Kosovo’s lawmakers gave preliminary approval to legislation expanding the size and competencies of the country’s security forces during a session that was boycotted by ethnic Serb representatives.
  4. A 48-day extraordinary Diet session is set to open next week in Japan, within which a number of issues key to the nation’s future are set to be debated — including drastic revision of immigration law and a draft proposal from the ruling Liberal Democratic Party to revise the war-renouncing Article 9 of the Constitution.
  5. The Nigerian Senate passed a heavily revised version of the Electoral Act Amendment Bill, with changes to technology used in the conduct of elections, criteria for candidates, the limiting of campaign expenses, and addressing problems related to the omission of names of candidates or logo of political parties.
  6. Slovak parliament failed to pass an amendment to the Constitution that would have changed the process of selecting Constitutional Court judges.
  7. The Foreign Minister of Syria informed a top U.N. envoy that the drafting of a new constitution was a “sovereign matter” up to the Syrian people, potentially adding to the difficulty in finding a compromise solution to a civil conflict which has killed hundreds of thousands, and displaced millions.

New Scholarship

  1. Tamir Moustafa, Constituting Religion Islam, Liberal Rights, and the Malaysian State, Cambridge University Press, 2018 (using the case study of Malaysia, the book examines how legal arrangements which enshrine both Islam and liberal rights regimes enable litigation and feed the construction of a ‘rights-versus-rites binary’ in law, politics, and the popular imagination).
  2. Julia Dehm, Highlighting inequalities in the histories of human rights: Contestations over justice, needs and rights in the 1970s, 1 Leiden Journal of International Law, 2018 (considering the ways in which concerns about economic equalities, both among and within countries, were taken up in human rights debates of the 1970s and how concerns about economic inequalities impacted on discussions about the possibilities, objectives and conceptions of rights).
  3. Josh Chafetz and David E. Pozen, How Constitutional Norms Break Down, 65 UCLA Law Review 1430 (2018) (exploring some of the different modes in which unwritten norms break down in the United States constitutional system and the different dangers and opportunities associated with each).
  4. Tom Gerald Daly, Relation of Constitutional Courts / Supreme Courts to IACtHR, Max Planck Encyclopedia of Comparative Constitutional Law, 2018 (laying out the relationship between the Inter-American Court of Human Rights and the constitutional or supreme courts of the twenty States Parties to the American Convention on Human Rights).
  5. Balázs Fekete, Interpreting the History of Modern Comparative Law: Beyond Descriptive Linearity. The Case of Historical-Comparative Jurisprudence Rivista di diritti comparati 2018(2) (providing a challenge to the linear historic narrative trajectory of comparative law, combining English and Germanic law approaches).
  6. Fred O. Smith Jr., Abstention in the Time of Ferguson 131 Harvard Law Review 2283 (2018) (arguing for a fresh look at carving up exceptions to the rule of barring federal lawsuits against state civil and criminal law regimes which criminalize poverty, in instances where such lawsuits could be used to address systemic constitutional issues).
  7. Christopher Carothers, The Surprising Instability of Competitive Authoritarianism, 29(4) Journal of Democracy (October, 2018), (analyzing data sets from 35 countries, and arguing that competitive authoritarianism, which is the most type of hybrid regime combining authoritarian and democratic features, are unstable. The data indicates that most have either democratized or been replaced by new autocracies).
  8. International IDEA, The Global State of Democracy. Key Findings and New Data, 2018 (presenting findings from new data from International IDEA’s Global State of Democracy Indices, which depict democratic trends across five main attributes of democracy, as well as a number of sub-attributes and subcomponents, and aims to provide a new, comprehensive measurement of democracy).

Call for Papers and Announcements

  1. Boston College Law School, with support from the Institute for Liberal Arts, invites submissions from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
  2. The Australian Human Rights Institute, in association with the University of New South Wales invites registration for its conference to be held on 14-16 May, 2019, with its focus on topics modern slavery and supply chains, new technologies and human rights, climate justice and human rights, populism, leadership and human rights, diversity and human rights.
  3. International IDEA calls for applicants for the positions of Program Officer and Associate Program Officer at its offices in Yangon.
  4. The Review of Constitutional Studies/Revue d’études constitutionnelles invites submissions in English or French for its issues 23(2) and 24(1).
  5. McGill University’s Faculty of Law and the Peter Mackell Chair in Federalism invite submissions related to any aspect of federal theory or practice, by January 14, 2019 for Baxter Family Competition on Federalism.
  6. The Centre of Excellence for International Courts (iCourts) and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) invites applications for a high-level summer school for PhD students working on international courts in their social and political context. The deadline for applications is 1 February 2019.
  7. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Global & Senior Global Emile Noël Research Fellows who should be post-doctoral or tenured academics with a demonstrable background of legal scholarship. More senior academics (for example, faculty members tenured for ten years or more) at the discretion of the selection committee may be designated as Senior Global Emile Noël Research Fellows. The deadline is January 15, 2019. More information can be found here.
  8. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Global Emile Noël Fellows from Practice and Government intended for government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship. The deadline is January 15, 2019. More information can be found here.
  9. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Post-Doctoral Global Emile Noël Fellows, who should be post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution. The deadline is January 15, 2019. More information can be found here.
  10. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Visiting Doctoral Researchers, who should be doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. The deadline is February 15, 2019. More information can be found here.

Elsewhere Online

  1. Mugambi Laibut, Popular initiatives to amend Kenya’s constitution: A misdiagnosis of the problem?, ConstitutionNet, 26 October.
  2. Sachin Dhawan, Muslim Divorce and the Constitutional Right to Equality, Blog of the IACL-AIDC, 26 October.
  3. Diego Werneck Arguelhes and Thomaz Pereira, What does a Bolsonaro Presidency mean for Brazilian Law? Reforms from the Far Right (Part I), and What does a Bolsonaro Presidency mean for Brazilian Law?: the Reforms and the Court (Part II), Verfassungsblog, 25 and 24 October.
  4. Adam Feldman, Empirical SCOTUS: State fault lines that might lead to big cases before the Supreme Court, SCOTUS Blog, 24 October.
  5. Letlhogonolo Mokgoroane, Expropriation without compensation: Democratizing South Africa’s economy?, ConstitutionNet, 24 October.
  6. Max Steuer, On the Brink of Joining Poland and Hungary: The Night of Surprises in the Slovak Parliament, Verfassungsblog, 25 October.
  7. Daniel Kelemen and Laurent Pech, Poland’s plan to get rid of independent judges has just hit a roadblock, The Washington Post, 25 October.
  8. William Baude, Were the framers originalists (and does it matter)?, Balkinization, 24 October.
  9. Robert Craig and Gavin Phillipson, Could the ‘Meaningful Vote’ End up in Court?, UK Constitutional Law Blog, 24 October.
  10. Stephen Hopgood, What is the greatest challenge to the future of human rights? We the people are, The Conversation, 23 October.
  11. Michal Ovádek, Constitutional Pluralism between Normative Theory and Empirical Fact, Verfassungsblog, 23 October.
  12. David R. Cameron, With Brexit clock ticking, UK & EU still at odds over future relationship and Irish border, Yale MacMillan Center, 22 October.
  13. Dylan Matthews, Can technocracy be saved? An interview with Cass Sunstein, Vox, 22 October
  14. Pedro Villarreal, The Direct Justiciability of the Right to Health at the IACtHR. What is the Added Value?, Völkrrechtsblog, 22 October.
  15. Hans Hosten and Christian Kaufhold, New Cuban Constitution: Towards a System Without a Single Leader, Verfassungsblog, 22 October.
  16. Francisca Pou Giménez and Ana Micaela Alterio, Book Review: Transformative Constitutionalism in Latin America, Blog of the IACL-AIDC, 22 October.
  17. Tarun Khaitan, Indian Democracy at a Crossroads, Verfassungsblog, 20 October.
  18. Nathan Stephens-Griffin, Anti-fracking activists released on appeal – but criminalisation of nonviolent protest is new norm., The Conversation, 19 October.
  19. David Phinnemore, Extending the Brexit transition period: what does it mean for a deal?, The Conversation, 19 October.
  20. Javier Garcia Oliva, Challenges on the 40th anniversary of the Spanish constitution: Can Spain find a way to accommodate Catalonia?, LSE Blogs, 18 October.
  21. Pieter Cannoot, V. v. Italy: on temporality and transgender persons., Strasbourg Observers, 19 October.
  22. Bob Bauer, The Unintended Consequences of Enshrining Norms in Law, Lawfare Blog, 16 October.
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Published on October 29, 2018
Author:          Filed under: Developments
 

Call for Papers–Conference on “Amending America’s Unwritten Constitution”–Boston, May 16-17, 2019

Boston College Law School

with the support of

The Institute for Liberal Arts

invite submissions for

Conference on “Amending America’s Unwritten Constitution”

Boston College
Newton, Massachusetts
May 16-17, 2019

Submissions are invited from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics.

Convened by Richard Albert (Texas), Yaniv Roznai (IDC), and Ryan C. Williams (Boston College), this Conference will be held on the campus of Boston College on Thursday and Friday, May 16-17, 2019.

Subject-Matter of the Conference

Recent constitutional scholarship reveals renewed interest in how unwritten constitutional norms and conventions underlying U.S. constitutional practice can and do change. The conference aims to advance the field by focusing on theoretical, conceptual, and practical questions concerning what it means to “amend” America’s “unwritten constitution” (including what has been called the “small-c constitution”), how the “unwritten constitution” can be amended, and who the relevant constitutional actors are in catalyzing and concretizing these changes.

Structure of the Conference

The conference will be structured around eight keynote lectures in addition to concurrent panels comprised of faculty and graduate students in law, history, political science and other fields of interest.

The conference keynote lectures will address the following themes:

1. What and Where is America’s Unwritten Constitution?
Mark Graber (Maryland)

2. What is an “Amendment”?
Sandy Levinson (Texas)

3. America’s Unwritten Constitution
Miriam Seifter (Wisconsin)

4. Amending Unwritten Constitutional Norms and Conventions
Frederick Schauer (Virginia)

5. Comparative Perspectives on America’s Unwritten Constitution
Mark Tushnet (Harvard)

6. The Role of the Political Branches in Unwritten Amendment
Vik Amar (Illinois)

7. The Role of the Courts in Unwritten Amendment
Carolyn Shapiro (Chicago-Kent)

8. The Role of the People in Unwritten Amendment
Emily Zackin (Johns Hopkins)

In addition to the keynote lectures, the two-day conference will feature concurrent panels featuring 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 themes, broadly-defined. The panels will be chaired by the keynote lecturers. These panels will offer participants a combination of rigorous scholarly exchange and constructive guidance on the ideas in the papers. Conference meals will offer an opportunity for more relaxed social interaction.

Eligibility

Submissions for the concurrent panels are invited from faculty and students enrolled in graduate programs from various disciplines (e.g. history, law, political science, sociology). Papers are welcomed on any subject related to the eight keynote topics identified above. Papers may take comparative, doctrinal, empirical, historical, philosophical, sociological, theoretical or other perspectives.

Submission Instructions

Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019. Scholars should identify their submission with the following subject line: “Conference on Amending America’s Unwritten Constitution” —Abstract Submission.” Please state in your submission to which of the above-mentioned eight themes your abstract suits. All materials should be submitted in PDF.

Notification

Successful applicants will be notified no later than December 1, 2019.

Costs

There is no cost to participate in this Conference. Group meals will be generously provided by Institute for the Liberal Arts at Boston College. Successful applicants are responsible for securing their own funding for all other expenses.

Questions

Please direct inquiries in connection with this Symposium to:

Richard Albert
The University of Texas at Austin
richard.albert@law.utexas.edu

Yaniv Roznai
Interdisciplinary Center (IDC) Herzliya
Email: yaniv.roznai@idc.ac.il

Ryan C. Williams
Boston College Law School
willibit@bc.edu

About the Convenors

Richard Albert is William Stamps Farish Professor of Law at the University of Texas at Austin. He writes about constitutional change, including amendment, replacement, interpretation and revolution. His publications have been translated into Chinese, Hungarian, Portuguese, Russian and Spanish. He is co-editor of the new Oxford Series in Comparative Constitutionalism, co-editor of the Routledge Series on Comparative Constitutional Change, book reviews editor for the American Journal of Comparative Law, co-editor of I-CONnect, chair-elect of the AALS Section on Comparative Law, and a former law clerk to the Chief Justice of Canada. Richard Albert holds degrees from Yale, Oxford and Harvard.

Yaniv Roznai is a Senior Lecturer at the Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya. He holds a PhD and LL.M from The London School of Economics (LSE), and LLB and BA degrees in Law and Government from the IDC.  Yaniv was a Post-Doc Fellow at the University of Haifa and New York University (NYU), and a visiting researcher at Princeton University. He is the Co-Founding Chair of the Israeli Association of Legislation, and former secretary general of the Israeli Association of Public Law. His book, “Unconstitutional Constitutional Amendments – The Limits of Amendment Powers” was published in 2017 with Oxford University Press – Constitutional Theory Series.

Ryan Williams is an Assistant Professor of Law at Boston College Law School.  He writes about constitutional law, focusing particularly on the original understanding and historical development of constitutional provisions. His work has appeared or is forthcoming in The Harvard Law Review, The Yale Law Journal, the Columbia Law Review, the Virginia Law Review, and the Stanford Law Review, among others. Prior to joining Boston College, Ryan was an Associate-in-Law at Columbia Law School and a Sharswood Fellow at the University of Pennsylvania Law School.  He holds a J.D. from Columbia Law School.

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Published on October 28, 2018
Author:          Filed under: Developments
 

Conference Report – Inaugural Conference of the Singapore Chapter of the International Society of Public Law (ICON-S Singapore) – “Constitutional Interpretation In and Outside the Courts”

Maartje de Visser, Associate Professor of Law, Singapore Management University (SMU), with contributions from Jaclyn Neo, Associate Professor of Law, National University of Singapore (NUS)

On 12 October 2018, the Singapore chapter of the International Society of Public Law (ICON-S Singapore) organized a workshop on ‘Constitutional Interpretation In and Outside the Courts’ to launch the chapter. Hosted by the Singapore Management University School of Law, and with the support of the National University of Singapore’s Centre for Asian Legal Studies, the conference was convened by the Singapore chapter’s founding co-chairs Associate Professor Jaclyn L. Neo (National University of Singapore, Faculty of Law) and Associate Professor Maartje de Visser (Singapore Management University School of Law).

The full-day Workshop brought together participants from various academic and professional backgrounds. Speakers included scholars from law and the social sciences, well-known constitutional lawyers, and representatives of the Attorney-General’s Chambers.

The workshop started off with a Welcome Address by the founding co-chairs. They introduced the Chapter and highlighted core aspects of its governing framework, to ensure that prospective members have a solid understanding of the Chapter’s aims, values and their rights and obligations. They proceeded to explain the choice for the theme for the workshop, pointing to the need to move beyond the court-centric approach that has typically characterized local scholarly discourse on constitutional interpretation to-date. While the Singapore judiciary has an important role in establishing the meaning  of constitutional provisions, other players too contribute to shared understandings of the constitution. The co-chairs accordingly advocated the adoption of a pluralist framework that also captures how the legislature, executive and society at large debate constitutional questions.

Read the rest of this entry…

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Published on October 26, 2018
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I-CONnect Invitation — Books for Review

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

Our community has benefited from the many critical, constructive, and quite useful book reviews our contributors have published here at I-CONnect. We will continue to commission reviews from specific scholars whose subject-matter expertise makes them particularly well-situated to comment on a given book.

Beginning today we will also give our readers the opportunity to express an interest in reviewing certain books. Here, below, is the first round of books available for review here at I-CONnect. Please email my colleague Trish Do at tdo[at]law.utexas.edu if you would like to review one of these books. A confirmation will follow. Preference will be given to first-time I-CONnect contributors.

  1. Rex Ahdar, Research Handbook on Law and Religion (Edward Elgar 2018)
  2. Nick W. Barber, The Principles of Constitutionalism (Oxford 2018)
  3. Colin Crawford & Daniel Bonilla Maldonado, Constitutionalism in the Americas (Edward Elgar 2018)
  4. Jon Elster, Roberto Gargarella, Vatsal Naresh & Bjorn Erik Rasch, Constituent Assemblies (Cambridge 2018)
  5. Tom Ginsburg & Aziz Huq, How to Save a Constitutional Democracy (Chicago 2018)
  6. Mark Graber, Sanford Levinson & Mark Tushnet, Constitutional Democracy in Crisis? (Oxford 2018)
  7. Theunis Roux, The Politico-Legal Dynamics of Judicial Review (Cambridge 2018)
  8. Robert Schuetze, Globalisation and Governance: International Problems, European Solutions (Cambridge 2018)
  9. Catherine Valcke, Comparing Law: Comparative Law as Reconstruction of Collective Commitments (Cambridge 2018)

A photo of the book covers appears below.

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Published on October 25, 2018
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López Obrador’s Fourth Transformation of Mexico: Four Areas of Scholarly Inquiry

[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 2018, see here.]

Francisca Pou Giménez, ITAM, Mexico City

Last July, Andrés Manuel López Obrador (AMLO) won the Mexican presidential election with a historic, landslide victory. Not only did he get an amazing 53% of the vote, but his political party (Morena) and its allies secured 308 Deputies out of 500, and 69 Senators out of 128, therefore enjoying absolute majorities in both Chambers of Congress.[1] The situation at the State level is more nuanced, since only 9 elections were celebrated in July, and the territorial presence of Morena is highly uneven.[2]

Although AMLO led electoral polls all the way long, comfortably ahead of the candidate of the conservative party (PAN), and widely ahead of the candidate of the party that was in power from 2012 and for seven decades in the 20th century (PRI), the size of his victory was unexpected. As it has come to be felt and agreed upon by analysts and citizens alike, the July election was a sort of general plebiscite on the status quo, whose results must be read as a clear and powerful call for the radical transformation of the country. AMLO was voted by its traditional (left) constituencies, but also by millions of people that were not prepared to support parties that have occupied the Presidency in recent times, with a terrible record in terms of violence, death, corruption and inequality. AMLO centered his campaign in the rejection of the “power mafia”, the fight against corruption, the diminution of privilege, and the prioritization of the needs of the poor. With the support of the people —he has repeated time and again— he will push forward Mexico’s “Fourth Transformation” (the previous ones being the Independence movement at the beginnings of the 19th century, Benito Juárez’s Reform movement in the second half of the 19th century, and the Mexican Revolution at the beginning of the 20th century).[3]

Four months have passed since July. During this transition period, set to end on December 1 on his finally taking office, the President-elect has already advanced many initiatives, some of them more controversial than others. He has prepared, for instance, the integration of government teams, with far more women than earlier governments but also with unmistakable representatives of old Mexican politics; he received approval in Congress of a bill that caps the salaries of high officials so that they do not surpass the (relatively modest) salary of the President; he has organized an informal popular consultation on the continuation or cancellation of the highly controversial construction of a new international airport in an ecologically sensitive area; and he has advanced some prospective measures in the areas that pose the more intractable challenges –the gaining of territorial control, the reduction of organized crime, the limitation of total impunity, and ubiquitous violence. While AMLO has emphasized the power of new beginnings and the potential of leading by example, it is by now clear that the seriousness of the country’s condition will make things far more difficult and slow than originally anticipated.[4]

In what follows, rather than focusing on one or another specific initiative, I will briefly identify four general areas scholars should keep an eye on in the years to come. In my view, Mexico’s Fourth Transformation will no doubt offer developments relevant to at least the following fields: forms of constitutional change, anti-corruption reform, authoritarianism/populism/democracy inquiries, and transitional justice.

Read the rest of this entry…

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Published on October 24, 2018
Author:          Filed under: Analysis
 

Will Iceland Get a New Constitution? A New Revision Process Is Taking Shape

Alexander Hudson, Max Planck Fellow Group “Comparative Constitutionalism”

The “crowdsourced” constitution-making process that took place in Iceland in 2011 received a great deal of attention in the international press, and later in academic work as well. As readers of this blog no doubt know, the draft constitution produced in that process was never ratified by the Parliament. In the years since, constitutional revision has remained an issue in Iceland politics, but was not one of the key issues for most voters in the elections of 2013, 2016 or 2017. The 2013 election saw the return to power of center-right parties that had for the most part opposed the 2011 draft constitution. The 2016 and 2017 elections were precipitated by scandals involving the prime ministers at the time.[1] While the Pirate Party made ratification of the 2011 draft constitution a central part of their platform, other parties focused on other issues. The 2017 election brought a new (and unusual) coalition to power, as Katrín Jakobsdóttir of the Left-Green Movement became the Prime Minister in coalition with the Progressive Party and the Independence Party in November 2017. A poll taken in September 2017 indicated that a majority of Icelanders wanted to see a new constitution ratified by this most-recently elected Parliament.

In January 2018, Prime Minister Jakobsdóttir announced a new effort toward constitutional reform in Iceland.

Read the rest of this entry…

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Published on October 23, 2018
Author:          Filed under: Developments
 

What’s New in Public Law

Maja Sahadžić, Ph.D. Researcher, University of Antwerp

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 Constitutional Court in Romania ruled that LGBTQ couples have the same family rights as heterosexual couples.
  2. The Constitutional Court in Colombia rejected time limits on abortion.
  3. The Constitutional Court in Malta, in a case of smuggling soap thinking it was cannabis, ruled the statement to police is inadmissible.
  4. The Constitutional Court in Mali delayed the country’s parliamentary elections until 2019 by extending the mandate of MPs for six months.
  5. The Constitutional Court in Romania partially admitted the notifications in connection with the draft law for the amendment of the Criminal Procedure Code of Romania.
  6. The Constitutional Court in Colombia ruled that local communities cannot ban mining and other extractive projects through popular referendums.
  7. The Constitutional Court in Cameroon rejected 18 petitions calling for a repeat of the recent presidential election.
  8. The Constitutional Court in Peru declared unconstitutional the law forbidding the State from contracting state advertising with private media.
  9. The Constitutional Court in Germany Constitutional Court approved strike ban for civil servants.
  10. The Constitutional Court in Ukraine recognized the right of the Finance Ministry to receive personal information about pensions, bonuses, subsidies and other social payments.
  11. The Constitutional Court in Israel overturned an appeals court ruling that agreed with the government’s decision to bar an American graduate student from entering the country over her alleged involvement in the boycott movement against the Jewish state.

In the News

  1. The Parliament of South Korea confirmed three judges of the Constitutional Court after the nine-member panel’s month-long vacancy.
  2. A former justice of the Romanian Constitutional Court argued that the emergency ordinance on the laws of justice is contrary to the Romanian Constitution.
  3. The prosecutor general in Poland asked the Polish Constitutional court whether the EU Court has judicial supremacy over national tribunals on the interpretation of EU laws.
  4. Bosnia and Herzegovina faces a fresh discrimination case before the European Court of Human Rights.
  5. The Slovak Parliament Parliament approved a major amendment to the green energy support legislation.
  6. The Health Minister of Malaysia confirmed he will not retract a contentious decision to ban smoking inside the Parliament building.
  7. The Tasmania’s Parliament is set to push on raising the number of members in the lower house.
  8. The Parliament of Macedonia is set to vote on the country’s name change ending the decades-long dispute with Greece.
  9. The Turkish President Turkish submitted a motion to the parliament for the nation’s 2019 budget for the first time under the new presidential system.

New Scholarship

  1. Patricia Popelier, Bicameralism in Belgium: the dismantlement of the Senate for the sake of multinational confederalism, Perspectives on Federalism (2018) (exploring how the dismantling of the Belgian Senate fits in the increasingly devolutionary nature of the Belgian state structure)
  2. Tom Ginsburg and Aziz Huq, Democracy’s Near Misses, Journal of Democracy (2018) (developing the concept of a democratic near miss by considering the numerical metrics of democratic quality as a means of identifying near misses)
  3. Matthew T. Stubbs, Eligibility of Dual Citizens: The Coming-of-Age of Section 44’, Law Society Bulletin (2018) (analyzing section 44 of the Australian Constitution and the issues associated to its application in terms of eligibility to be chosen to sit in the Commonwealth Parliament)
  4. P. Y. Lo, Enforcing an Unfortunate, Unnecessary and ‘Unquestionably Binding’ NPCSC Interpretation: The Hong Kong Judiciary’s Deconstruction of Its Construction of the Basic Law, Hong Kong Law Journal (forthcoming 2018) (examining three cases by arguing that with the insistence of the appellate courts no attempt was made to apply the consistent interpretation of the values underlying Hong Kong’s common law-based legal system)
  5. Jaclyn L. Neo & Ngoc Son Bui, Pluralist Constitutions in Southeast Asia (forthcoming 2019) (examining how constitutional orders in individual Southeast Asian countries respond to a range of ethnic, political, and legal plurality in the respective countries)
  6. Zhang Taisu, The Development of Comparative Law in Modern China, in Mathias Reimann and Reinhard Zimmermann (eds.), Oxford Handbook of Comparative Law (2nd ed.) (2018) (exploring the development of comparative law in modern China)
  7. Mate Manoj, Constitutional Erosion and the Challenge to Secular Democracy in India, in Mark Graber, Sanford Levinson, Mark Tushnet (eds.), Constitutional Democracy in Crisis? (forthcoming 2018) (analyzing how the ongoing drift toward increasing religiosity in elections and governance poses a challenge to secular constitutional democracy in India)
  8. Lee Marsons, Bifurcation, Unification, and Calibration: A Comparison of Indian and English Approaches to Proportionality, Indian Law Review (Forthcoming 2018) (exploring the relationship between proportionality and rationality review in England and India).

Call for Papers and Announcements

  1. The Boston College Law School, with support from the Institute for Liberal Arts Submissions, invites faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
  2. The Institute for Comparative Federalism of Eurac Research, the Faculty of Law and the Faculty of Social and Political Sciences of the University of Innsbruck invite applications for the EURAC Winter School „Federalism and the Rule of Law“ on 4-15 February 2019 in Innsbruck and Bolzano. The deadline for submissions is 21 October 2018.
  3. The Urban Law Center at Fordham Law School and University of New South Wales Law announce a call for participation in the “Sixth Annual International and Comparative Urban Law Conference” on 11-12 July 2019 in Sydney. The deadline for submissions is 10 January 2019.
  4. The University of Illinois College of Law, Princeton University, the University of Pennsylvania Law School, and the American Society of Comparative Law invite papers for the „Annual Comparative Law Work-in-Progress Workshop“ on 31 January-2 February March in Champaign. The deadline for submissions is 1 December 2018.
  5. Asia’s Global Law School, the Faculty of Law of the National University of Singapore invite applications for Post-Doctoral Fellowship positions commencing in 2019-2020. The deadline for applications is 31 December 2018.
  6. The University of Padua and Notre Dame Law School welcomes submissions for the conference “Disagreement and Constitutionalism” on 9-10 May 2019 in Treviso. The abstracts must be submitted no later than 30 November 2018.
  7. Claremont McKenna College’s Program on Empirical Legal Studies announces the second annual “Empirical Legal Studies Replication Conference” on 26 April 2019 in Claremont. The deadline for proposals is 31 October 2018.
  8. The Clough Center for the Study of Constitutional Democracy announces the international conference “Electoral Integrity and Constitutional Democracy in Latin America” on 1-2 November 2018 in Chestnut Hill. The deadline for registrations is 26 October 2018.
  9. The Asian Law Institute and NUS Faculty of Law’s Centre for Asian Legal Studies announce the inaugural “Asian Law Junior Faculty Workshop” on 13 June 2019 in Singapore. The applications must be submitted no later than 12 November 2018.
  10. The Law Review at University of Detroit Mercy School of Law invites proposals for the “2019 Detroit Mercy Law Review Symposium: Women and the Law” on 8 March 2019 in Detroit. The deadline for proposals is 9 November 2018.
  11. The University of Melbourne Law School invites papers for the workshop “Cities in Federal Theory” on 20 June 2019 in Melbourne. The deadline for applications 1 November 2018.

 Elsewhere Online

  1. Francesco Palermo, Perspectives on Comparative Federalism, 50 Shades of Federalism
  2. Maxime St-Hilaire, Mikisew Cree First Nation v Canada and “manner and form” requirements: tiny dicta with huge implications, Blogue à qui de droit
  3. Anurag Deb and Conor McCormick, Lee v Ashers: A Recipe for Jurisdictional Confusion?, UK Constitutional Law Association
  4. Anna Mazurczak, Poland’s Supreme Administrative Court recognizes Same-sex Parents, Verfassungsblog
  5. Brian Barry, Why the process of appointing judges really matters, RTÉ
  6. Jacob Rowbottom, Cakes, Gay Marriage and the Right against Compelled Speech, UK Constitutional Law Association
  7. David R. Cameron, Bavarian Earthquake: Big losses for the CSU and SPD, big wins for the Greens and AfD, Yale MacMillan Center
  8. Marco Antonio Simonelli, Judicial Appointments in the Age of Trump – Are There Remedies for Polarization?, IACL-AIDC BLOG
  9. Mark Elliott, Parliamentary control over Brexit-related delegated legislation: An important Government climbdown, Public Law for Everyone
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Published on October 22, 2018
Author:          Filed under: Developments
 

Invitation to Friends of I-CONnect: The State of Liberal Democracy in Central and Eastern Europe

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

Friends of I-CONnect are invited to attend a day-long workshop on “The State of Liberal Democracy in Central and Eastern Europe,” co-hosted by Fruzsina Gárdos-Orosz, director, HAS Centre for Social Sciences Institute for Legal Studies, and Eszter Bodnár, co-chair, ICON-S Central and Eastern European Chapter. The program will be held on December 6, 2018, at the Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies, 1097 Budapest, Tóth Kálmán utca 4, in the Institute for Legal Studies Meeting Room (wing T ground floor 0.25).

The program will feature the presentation and discussion of country reports in the annual I-CONnect-Clough Center Global Review of Constitutional Law. The program is available below.

The 2017 edition of the Global Review is available for free download here.

Please email Szontagh.VeronikaAnna@tk.mta.hu by November 25, 2018, to register for this workshop.

The editors of the Global Review thank Fruzsina Gárdos-Orosz and Eszter Bodnár for organizing and hosting this important event for the region.

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Published on October 21, 2018
Author:          Filed under: Developments
 

Black Belt Constitutionalism: Considering “Street fighting” as a Constitutional Essential

–Ursus Eijkelenberg, University of Manchester, Zeit-Stiftung

Not too long ago I watched the BBC documentary ‘Putin, Russia and the West’, a fascinating piece of political journalism and film-making. The work documents a big part of Putin’s rise to power, both his tactics and techniques in acquiring and consolidating power nationally as well as his foreign policy; his actions in the region and the relation and interplay with the West, primarily the United States. Some key players involved in these processes tell their stories, providing a uniquely detailed account of high-level power politics and diplomacy. Although the documentary as a whole is intriguing and most certainly worth watching, there is a small section of this series, merely a fragment, which got stuck in my head and thus became the topic of analysis for this short piece. The imagery and the situation depicted are perplexing: a mass of teenagers, participants in a constitutional festival so is told, are in the background of the picture actively engaged, not singing or dancing, but – en mass – exercising some form of martial arts. Whilst these ‘festivities’ take place, Gleb Pavlovsky, one of Russia’s most (in)famous political technologists, explains that “constitutional action sometimes requires street fighting.” I had a laugh, took a screenshot and continued watching.

Recently I stumbled on the screenshot and as this element was singled out, placed outside the context of the documentary, I was not quite sure why I had perceived it as utterly ridiculous: “constitutional actions sometimes requires street fighting.” Taken out of its literal sense of teenagers performing martial arts, the statement has some metaphorical value and resonates with the constitutionalism debate so vibrant nowadays. Understood as such, the statement indicates that constitutional action sometimes requires struggle, contestation, political fighting on the streets, that is on a foundational, civic level.

The two questions that rose to my mind were, first, how does liberal constitutionalism fight its battles. That is, by what means and in what arena does it confront its adversaries? And secondly, is this statement genuinely farcical, or does constitutional action indeed require street fighting? In regard to the latter, I will here make the case for what I dub as ‘civic militancy’. But let’s start with the first.

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Published on October 20, 2018
Author:          Filed under: Analysis
 

Citizens, Aliens and Aboriginal Australians – An Uncertain Constitutional Community

–Julian R. Murphy, Postgraduate Public Interest Fellow, Columbia Law School

Recent developments in Australian constitutional law suggest that the bounds of Australia’s constitutional community are currently unclear, and may well be at odds with the lived experience and beliefs of a significant portion of the Australian public. This post suggests two possible correctives: an “evolutionary” approach to constitutional interpretation informed by contemporary public understandings of the Australian community; or, in the alternative, a constitutional amendment.

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Published on October 19, 2018
Author:          Filed under: Analysis