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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


–Susan Achury, Visiting Lecturer, Texas Christian University


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 Colombia ruled unconstitutional virtual sessions of Congress.
  2. The Court of Appeal of Singapore ruled that there is a constitutional right to vote, but that this right had not been violated by a decision to hold a general election during the COVID-19 crisis.
  3. The US Supreme Court ruled that the eastern half of Oklahoma can be considered Native American territory. Oklahoma must honor a treaty from nearly two centuries ago, setting aside this land for Native peoples.
  4. The US Supreme Court ruled that the President is not immune from a New York prosecutor’s subpoena for his tax return.
  5. The US Supreme Court ruled limiting the scope of Congress’ power to subpoena information from the President.
  6. The US Supreme Court ruled that Catholic schools cannot be sued for employment discrimination.
  7. The Constitutional Court of Spain ruled unconstitutional the regulation on instalment payments of corporate income tax.
  8. In Latvia, the Constitutional Court ruled that benefits for invalids and pensioners are inappropriate.

In the News

  1. Harvard and MIT file lawsuit to stop Trump policy prohibiting international students from staying in the US if schools go online.
  2. Guatemala’s Constitutional Court is under attack. In Guatemala, Congress and Supreme Court launched dubious proceedings to remove and potentially prosecute four judges from the Constitutional Court for alleged abuse of authority.
  3. Mali’s President promised to reform the Constitutional Court after a decision over the disputed legislative elections.  
  4. Movement for Black Lives introduces proposed BREATHE Act aiming to divert federal resources from jails and police, invest in other methods of community safety, allot funds to rebuilding communities, and hold law enforcement officials accountable for civil rights violations.
  5. Trump administration had officially moved to formally withdraw the US from the World Health Organization (WHO).

New Scholarship

  1. Charles Ngwena, “What is Africanness?” Contesting nativism in race, culture and sexualities, (2018) (analyzing the concept of nativists to present understanding of Africa as the land of diverse identifications)
  2. Joanna Bell, The Anatomy of Administrative Law (2020) (exploring the nature of the legal structures at play in administrative adjudication)
  3. Alice J. Kang, Miki Caul Kittilson, Valerie Hoekstra, and Maria C. Escobar-Lemmon Diverse and inclusive high courts: a global and intersectional perspective, Politics, Groups, and Identities, (2020) (exploring the attempts at and successes of promoting intersectional inclusion in the context of the high courts of Canada and South Africa)
  4. Andrea Castagnola,  La Trampa de la Manipulación Judicial: Un Análisis Histórico del Control Político de la Suprema Corte Argentina, Revista Uruguaya de Ciencia Política (2020) (identifying the politicians incentives to impede the emergence of a stable and independent judiciary)
  5. David Landau, Personalism and the Trajectories of Populist Constitutions (2020) (reassessing the role of the judiciary in checking populist governments)
  6. Alan Bogg, Jacob Rowbottom, Alison L Young, The Constitution of Social Democracy: Essays in Honour of Keith Ewing (2020) (exploring the development of social democracy and democratic socialism in theory and political practice. It includes sections on the judicial protection of rights, the parliament, democracy, social justice, and the frontiers of social democracy). 
  7. Sergio Muro, Sofia Amaral-Garcia, Alejandro Chehtmana, and Nuno Garoupa, Exploring dissent in the Supreme Court of Argentina, International Review of Law and Economics (2020) (showing different types of dissent based on levels of collegial and effort related costs and how they affect the likelihood of dissent)
  8. Md Jahid Hossain Bhuiyan and Darryn Jensen, Law and Religion in the Liberal State (2020) (examining contemporary problems in the accommodation of religious and secular authority)

Calls for Papers and Announcements

  1. Early registration is now open for a free online seminar on Socialism and Constitutionalism hosted by the International Forum on the Future of Constitutionalism.
  2. The  National Law School of India Review, the flagship law journal of the National Law School of India University, has announced a call for paper for its forthcoming Volume 33, Issue 1. (Due October 30)
  3. Institute of Advanced Legal Studies (IALS) and Westminster Foundation for Democracy (WFD) has issued a call for papers on “Are emergency measures in response to COVID-19 a threat to democracy? Fact and Fiction.” (Due June 30).
  4. Católica Law Review has issued a call for papers on “Public Law in Times of Crisis” for its Volume V, issue 1. (Due September 30)
  5.  The Annals of Health Law and Life Sciences at Loyola University Chicago School of Law has issued a call for papers on “Post-Pandemic Impact on Healthcare Development and Delivery” for publication in our Winter 2020. (Due July 24)
  6. The South Carolina Law Review has issued a call for papers addressing the broad range of topics related to “Taxation, Finance, and Racial Justice.” (Due October 1)
  7. The Oxford Seminars in Jurisprudence has issued a call for papers on topics related to the philosophy of law. (Due August 10)
  8. The International Journal of Discrimination and the Law has issued a call for papers for a special issue entitled “COVID-19: Lessons for and from Vulnerability Theory.” (Due October 31)
  9. The Canadian Legal Education Annual Review (CLEAR), a peer-reviewed annual publication of the Canadian Association of Law Teachers (CALT), has issued a call for papers for its Volume 9. (Due August 15).
  10. The University of New Hampshire Law Review has issued a call for papers on to participate in the Symposium Rights & Responsibilities: Judicial & Legislative Responses to the Covid-19 Pandemic, to be hosted online via ZOOM October 23. (Due September 1)

Elsewhere Online

  1. Donald Bello Hutt and Andrej Kristan, The ghost of the results-oriented constitutional review, Revista Derecho del Estado, Universidad Externado de Colombia.
  2. Diana Carrera and Johanna Fröhlich, Constitutional Identity in Transition? The Case on the Human Rights of the State, IACL-IADC Blog
  3. Carlos Arturo Villagrán Sandoval, A Constitutional Telenovela: The Deepening Constitutional Crisis in Guatemala, IACL-IADC Blog
  4. Grace Iara Souza, Brazil’s indigenous peoples face a triple threat from COVID-19, the dismantling of socio-environmental policies, and international inaction, LSE blog
  5. Catherine Andrews and Ariadna Acevedo Rodrigo, Cien años de arrogancia: por qué el liberalismo ‘occidental’ no salvará a América Latina, LSE blog
  6. Marin Keršić, Voting in Times of a Pandemic: The Case of Croatia: Constitutional Conflict between the Right to Vote and the Protection of Health, Verfassungsblog
  7. Marie-Laure Basilien-Gainche, Ask the Dust, Verfassungsblog
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Published on July 13, 2020
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An Unconstitutional Constitutional Amendment? The Strange Case of the Postponement of the 2020 Brazilian Election

Jairo Lima, Universidade Estadual do Norte do Paraná

Among the many impacts the COVID-19 epidemic has had on political and constitutional activity worldwide, the postponement or cancellation of elections has been one of the key issues. According to data from the Institute for Democracy and Electoral Assistance, an institution that monitors electoral processes in the world, between February 2 and July 5, 67 countries and territories decided to postpone elections that were planned at the national or subnational level.[1] In Latin America, for instance, Chile, which is facing a constituent process for a new Constitution, postponed the plebiscite that was supposed to be held on April 26 of this year.

In Brazil, municipal elections were scheduled to take place next October. However, because election campaigns necessarily involve crowding and personal contact, the Brazilian National Parliament decided on July 3 to postpone the elections until November 15, 2020 by means of a constitutional amendment (nº 107). The amendment was necessary because the dates of the elections are set by the Constitution: art. 29, II: “election of Mayor and Vice-Mayor must be held on the first Sunday of October of the year prior to the end of the term of those who must succeed”.

The major constitutional problem in the postponement of the elections by means of a constitutional amendment lies in the potential conflict with another constitutional provision that expressly prohibits changes in the electoral process without the law being passed at least within one year prior to the election date (art. 16).

Does this provision represent a substantive limit to the amending power in Brazil?

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Published on July 11, 2020
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Pandemic Rulings: Between Dialogues and Shortcuts at the Inter-American Court of Human Rights

Melina Girardi Fachin and Bruna Nowak, Universidade Federal do Paraná

On May 26, 2020, the President of the Inter-American Court of Human Rights (IACtHR) issued the Court’s first decision concerning the COVID-19 pandemic. The resolution decided upon urgent measures regarding the already-decided Case of Vélez Loor v. Panama, and thus ordered Panama to take a range of new measures to protect immigration detainees during the pandemic. This decision raises important questions regarding the procedure of the IACtHR, which link to broader issues regarding the relationship between the Court and member states. These questions include (1) the proper scope of judicial orders by a single member of the Court (in this case, its President), and (2) the proper role of provisional measures when the Court has already decided the merits of the case that gives rise to the request. 

Originally, provisional measures aimed to assure the effectiveness of a future judicial decision. However, practice shows that provisional measures cases do not usually become a contentious dispute before the Court. This is when the protective facet of the measures is triggered, as a jurisdictional preventive guarantee that intends to stop irreparable damages.

The American Convention on Human Rights (ACHR) establishes, in its article 63.2, that “in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration”. Thus, provisional measures hold a precautionary character: they are intended to prevent more harm from being caused in the context of human rights violations. 

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Published on July 9, 2020
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As Karlsruhe and Luxembourg Feud, are Jo’burg and Arusha Growing Closer?

Tom Gerald Daly, The University of Melbourne

2020, which has been a friend to no one, has certainly not spared international courts. Most obviously, the Federal Constitutional Court of Germany’s Weiss[1] judgment of 5 May, holding a judgment of the Court of Justice of the EU ultra vires due to poor reasoning, has shaken the primacy of EU law as the very foundation of the Union. The ultimate judicial showdown has launched (seemingly) a thousand blog posts, with commentators criticizing the German Court’s own reasoning, and issuing open letters insisting that national courts simply cannot override CJEU judgments. It has upturned a long-held view of broadly positive interaction in Europe achieved, not through formal design, but by courts engaging in ‘judicial diplomacy’ and strategy across the national/international divide to allow the overall system to function without excessive friction, despite key national courts’ longstanding refusal to acknowledge the absolute and unconditional supremacy of EU law.[2]

Other international courts have also had a tough 2020. As global attention has been consumed by the COVID-19 pandemic, the African Court on Human and Peoples’ Rights in Arusha, Tanzania, has suffered a stealthy backlash, with both Benin and Côte d’Ivoire withdrawing their declarations allowing individuals and NGOs to petition the African Court. This forms part of a wider pattern of backlash that has included Rwanda and Tanzania withdrawing their declarations in 2016 and 2019, non-compliance with key judgments, and questionable plans to merge the Court with the AU’s (as yet not established) Court of Justice to create an African Court of Justice and Human Rights, which have left the Court in a position of institutional insecurity.

However, a recent positive – and potentially quite significant – development in the relationship between national and international judiciaries in the African Union (AU) has gone largely unnoticed. On 11 June, for the first ever time the Constitutional Court of South Africa cited the African Court. In the Court’s New Nation Movement[3] ruling, holding the ban in Electoral Act 73 of 1998 on independent candidates unaffiliated to any political party standing in national and provincial elections is unconstitutional and lacking justification, Madlanga J directly cited the African Court’s first merits judgment of June 2013, Mtikila v. Tanzania,[4] which unanimously held the Tanzanian Constitution’s bar on independent candidacies incompatible with the African Charter on Human and Peoples’ Rights (‘Banjul Charter’). To say this is a positive development does not necessarily require agreement with the substance of the judgment itself (indeed, on Twitter, Tarunabh Khaitan has already voiced a negative view of the decision).

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Published on July 8, 2020
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Call for Papers — Constitutional Space for Cities


Constitutional Space for Cities

April 7th – 8th, 2021

Call for Papers

Cities are drivers of the world’s economy:  they are home for most of the world’s population and create a large percentage of its’ wealth.  Nevertheless, municipal governments struggle to invest in appropriate infrastructures and necessary services, leading to considerable gaps in affordable housing, public transit, and social services.  This conference, on “Constitutional Space for Cities” and its’ associated papers, will seek to understand and explain why … and propose paths forward for Cities in Canada.

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Published on July 7, 2020
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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 Constitutional Court of Italy declared Criminal Code Provision on Child Abduction Unconstitutional.
  2. The Constitutional Court of South Africa denied the application of an opposition party challenging the Disaster Management Act.
  3. The US Supreme Court ruled that states cannot ban public funding for religious schools.
  4. The Constitutional Court of Costa Rica found that freedom of transit is not unlimited.
  5. The Constitutional Court of Kosovo annulled the 2019 Law on salaries.

In the News

  1. In Russia, proposed constitutional amendments were approved in a referendum.
  2. In Georgia, a bill on constitutional amendments to the electoral system was adopted.
  3. The Armenian President refused to sign further amendments to the constitution about the composition of the Constitutional Court.
  4. The US approved new sanctions after China passed a repressive security law.
  5. In Egypt, a new law has been ratified to govern legislative elections and the formation of the Senate.

New Scholarship

  1. Akhilesh Dubey, Legislating Fake News-Drawing Line Between Free Speech and Disinformation (2020) (discusses the challenges faced by fake news and disinformation disseminated through social media platforms in India)
  2. Christine A. Desan and Nadav Orian Peer, The Constitution and the Fed after the COVID-19 Crisis (2020) (reconstructing the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse)
  3. Gregory M. Collins, Commerce and Manners in Edmund Burke’s Political Economy (2020) (providing an analysis to the Commerce and Manners in Edmund Burke’s Political Economy that raises timely ethical questions about capitalism and its limits)
  4. Joanna Bell, The Anatomy of Administrative Law (2020) (seeking to further our understanding of the nature of administrative law doctrine and adjudication)
  5. Joshua Kastenberg, National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, 22 Elon Law Journal (2020) (incorporating original research from the personal correspondences of several judges and justices)
  6. Mehdi J. Hakimi, Elusive Justice: Reflections on the Tenth Anniversary of Afghanistan’s Law on Elimination of Violence Against Women, 18 Northwestern Journal of Human Rights (2020) (examining Afghanistan’s legal framework on combating gender-based violence against women, and the mounting challenges on the ground)
  7. Grainne De Burca, The Mutual Judicial Influence of National Courts and the European Court of Justice through the Preliminary Rulings mechanism: Evidence from the UK (2020) (examining 113 preliminary references made by the higher English courts over ten years to understand the extent to which the British courts have implemented rulings of the CJEU’s and the extent to which the interpretations proposed by the UK courts influenced the CJEU in return)

Calls for Papers and Announcements

  1. Starting next week: the online course on Judging in Times of Crisis: Conversations with High Court Judges around the World, featuring Supreme and Constitutional Court judges from Brazil, Canada, the Caribbean, Italy, Portugal, South Africa, and Taiwan.
  2. Chicago Journal of International Law (CJIL) invites comparative law articles for publication.
  3. The Law Review Anthology (TLRA) welcomes submissions for its new volume.
  4. Legal Corner (LC) Law Review calls for unpublished research papers, short notes, book reviews, case comments.
  5. The Shimla Law Review seeks submissions for its upcoming volume.
  6. The Comparative Constitutional Law and Administrative Law Quarterly invites submissions for its upcoming volume.

Elsewhere Online

  1. David R. Cameron, Civil War politics finally ends in Irish parliament: Fianna Fáil & Fine Gael form coalition, Yale MacMillan Center
  2. Isaac Ssemakadde, Ugandan electoral commission’s digital campaign order is unconstitutional, ConstitutionNet
  3. Liên H. Payne, Law Firms Need to Have Uncomfortable Conversations About Race, American Lawyer
  4. Thomas F. Cotter, Disgorgement as an Equitable Remedy, Comparative Patent Remedies
  5. Johannes Socher, Farewell to the European Constitutional Tradition The 2020 Russian Constitutional Amendments, Verfassungsblog
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Published on July 6, 2020
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The Constitutional Chamber’s Recent Decisions to Enable Legislative Elections in Autocratic Venezuela


Raul A. Sanchez Urribarri, Senior Lecturer in Legal Studies, La Trobe University (Melbourne). Email: r.sanchezu@latrobe.edu.au.


In recent weeks, the Constitutional Chamber of the Venezuelan Supreme Tribunal (Tribunal Supremo de Justicia, TSJ), issued key rulings in support of President Nicolás Maduro’s regime, in his quest to recover the control of the country’s parliament, overcome the ongoing political and economic crisis, and further cement his authoritarian rule.  The decisions allowed for designations of the National Electoral Authority (CNE), and the subsequent interventions (and virtual takeover) of two of the most important opposition political parties: Acción Democrática (‘Democratic Action) and Primero Justicia (‘Justice First’).

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Published on July 3, 2020
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Tomorrow Knows Better: A New Inflection Point in Brazil’s Democracy?

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Brazil is again in the spotlight, and, as has been a common narrative at least since President Jair Bolsonaro’s election in 2018, not for a good reason. News from everywhere has underlined that the country is not only under a health crisis due to the rapid spread of COVID-19, which has killed over 50,000 Brazilians (the world’s second in deaths, behind only the US), but, strikingly, also because of the serious threats to its democracy. A typical authoritarian vocabulary pops up on a daily basis in media and academic analyses of Brazilian politics. The New York Times published an alarming report saying that “President Bolsonaro and his allies are using the prospect of military intervention to protect his grip on power.” Yascha Mounk wrote a column for Folha de S. Paulo – Brazil’s leading newspaper -, arguing that “Brazil is already a democracy under military supervision”, and Steven Levitsky, though acknowledging that he is more concerned with the United States and its decline as a world leader, said that “Bolsonaro is more authoritarian than any other elected leader”.

The sequence of events more than support such a vocabulary. Just by reading the last week headlines, there we find: “It is time to put things in their right places, said Bolsonaro after Supreme Court’s decisions”, “Bolsonaro: I won’t be the first to break bad”, “The Armed Forces will not carry out absurd orders nor accept political judgments, says Bolsonaro”. Academic posts have also expressed this feeling. Emilio Meyer and Thomas Bustamante wrote “Authoritarianism without Emergency Powers: Brazil under Covid-19”, Antonio Maués wrote “Bolsonaro’s First Year: Trying to Erode Democracy, and João Victor Archegas and Letícia Kreuz were even more straightforward: ”The ‘Constitutional Military Intervention: Brazil on the Verge of Democratic Breakdown”. All the apprehension is more than justifiable in view of the sequence of events that have struck the country, and the past dictatorship from 1964-1985, though already quite distant after years of democratic life, is always a reminder of how things can turn out really badly.

However, those fascinating discussions are good examples of the difficult balance between, on the one hand, the importance of exposing and interpreting the fast and radical pace of events, and, on the other, the methodological challenge to patiently bide our time in order to more accurately understand and assess the reality. Constitutional lawyers and political scientists constantly deal with such a dilemma, especially when the situation changes so rapidly that it is like quicksand, swallowing some of our immediate, though well-founded, conclusions about a certain phenomenon.

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Published on July 1, 2020
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Constitutional “Vaccination”: China’s National Security Law-Making for Hong Kong


P. Y. Lo, LLB (Lond.), PhD (HKU), Barrister-at-law, Gilt Chambers, Hong Kong


A cartoon appeared in the US press several months ago, probably before COVID-19 was declared as a pandemic, with this caption: ‘That’s odd: My Facebook friends who were constitutional scholars just a month ago are now infectious disease experts …’.

This post introduces the current national security law-making by the Chinese Central Authorities for Hong Kong, a Special Administrative Region of China governed by systems different from those of China’s pursuant to a Basic Law that the Chinese Central Authorities enacted 30 years ago, in the language of pathology, epidemiology and immunology.

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Published on June 30, 2020
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Five Questions with Jill Goldenziel


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


In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about her research and writing.

This edition of “Five Questions” features a short video interview with Jill Goldenziel, Associate Professor, Marine Corps University-Command and Staff College.

Asked to identify her most meaningful publication among the ones she has authored, she selected Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States, published in the Berkeley Journal of International Law.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on June 30, 2020
Author:          Filed under: Reviews