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Blog of the International Journal of Constitutional Law

Five Questions with Mark Graber

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

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

This edition of “Five Questions” features a short video interview with Mark Graber, the University System of Maryland Regents Professor at the University of Maryland Francis King Carey School of Law.

When asked the question “among all your publications, which is your favorite?,” Mark Graber responded “The Passive-Aggressive Virtues,” which is available for download here.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com.

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Published on April 2, 2019
Author:          Filed under: Reviews
 

What’s New in Public Law

Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional Law Professor at Universidad de La Sabana

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

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

Developments in Constitutional Courts

  1. The U.S. Supreme Court heard a case that discusses the existence of constitutional limits to the power to redraw electoral districts in the states of North Carolina and Maryland.
  2. Judge Donal John O’Donnell of the Supreme Court of Ireland, concluded that a Fianna Fáil male member has standing to challenge the constitutionality of some provisions of the Electoral Act 1997 which governs female representation in elections.
  3. The Supreme Court of India declined to hear a petition that requested the deportation of Indian Muslims to Pakistan.      
  4. The Supreme Court of Myanmar is set to hear an appeal filed by two jailed Reuters reporters who were sentenced to serve seven years in prison.
  5. The Constitutional Court of Poland held that the appointment of the National Judicial Council’s members by the Parliament is compatible with the Constitution.
  6. The Supreme Court of Pakistan granted bail, on medical grounds, to convicted former president Nawaz Sharif.
  7. The Supreme Court of Canada emphasized that making an accused person wait in jail before trial should be the exception, not the rule.
  8. The U.S. Supreme Court halted the execution of a Buddhist man who was denied the presence of his spiritual adviser in the death chamber.    

In the News

  1. In the U.S., special counsel Robert Mueller submitted to Attorney General William Bar a report that contains his findings on the investigation into the Russian attack on the 2016 presidential election. The Justice Department’s Summary of the report can be read here.
  2. The Parliament of Egypt requested a series of amendments to the Constitution (one of them seeks to extend the presidential term in office). A referendum will follow, should these proposals be passed by a 2/3 parliamentary majority.
  3. U.S. Senator Marco Rubio plans to propose a constitutional amendment in order to establish, in the constitutional text, a fixed number of nine seats for the Supreme Court. At the same time, some Democrats are calling for abolishing the Electoral College.     
  4. The President of Kazakhstan, Kassym-Jomart Tokayev, signed a decree to rename the city of Astana to Nur-Sultan.
  5. Following a Venice Commission’s report, the government of Malta announced that it will introduce some amendments to the Constitution regarding –among others– the Attorney General’s powers as well as the rules concerning the appointment and removal of the members of the judiciary.
  6. The President of the U.S., Donald Trump, signed a proclamation recognizing Israel’s sovereignty over the Golan Heights. 
  7. The Prime Minister of Romania, Viorica Dancila, declared that Bucharest plans to move its embassy from Tel Aviv to Jerusalem.  
  8. The President of Honduras, Juan Orlando Hernandez, called Jerusalem the capital of Israel and announced that Honduras is planning to open a trade office there.  
  9. The European Union and the U.K. announced that their respective stances regarding the Golan Heights remain unchanged.  
  10. Over one million people rallied in central London to ask for a new referendum on the Brexit question.
  11. The U.K. House of Commons rejected, in an indicative vote, all eight Brexit proposed options.  
  12. The Parliament of Lithuania passed a constitutional amendment which grants individual access to the Constitutional Court via constitutional complaint. The Parliament also approved a law that allows the revision of already-in-place life sentences.   
  13. The President of the UK Supreme Court, Lady Hale, said that at least half of the UK’s judges should be women.
  14. The UN welcomed the Rohingya’s relocation plan proposed by the government of Bangladesh.
  15. The Prime Minister of New Zealand, Jacinda Ardern, announced a Royal Commission of Inquiry into the Christchurch mosques terror attack.
  16. The President of Mexico, Andres Lopez Obrador, asked Spain and the Vatican to apologize for the abuses committed during the conquest of the Americas occurred five centuries ago.  
  17. Several South American Presidents convened in Chile to announce the creation of the new regional bloc ‘Prosur’.  
  18. The Premier of Quebec, François Legault, defended the use of the so-called ‘notwithstanding clause’ to shield a bill banning the use of religious symbols in public spaces by certain authority figures such as teachers.  
  19. The Attorney General of Switzerland indicted Liberian former rebel leader Alieu Kosiah for war crimes
  20. The Algerian Army Chief, Gaid Salah, called on President Abdelaziz Bouteflika to step down.
  21. The Minister for Justice and Equality of Ireland, Charles Flanagan, published the text of the upcoming referendum that aims to modify the Constitution to ease the requirements to get a divorce.
  22. In the wake of allegations of electoral irregularities and amidst the current military-led government, seven pro-democracy parties in Thailand forged a coalition which is large enough to claim parliamentary majority.
  23. The Chamber of Deputies in Brazil passed a bill that grants Congress-members more control over the federal budget.
  24. The Prime Minister of Pakistan, Imran Khan, announced the introduction of several measures to combat poverty. One of them entails a constitutional amendment whose purpose is to move article 38(d) –that regulates the provision of basic necessities of life– from the “Principles of Policy” section into the “Fundamental Rights” section.   
  25. The deputy commander-in-chief of the Myanmar military, Vice Senior General Soe Win, warned that the enactment of constitutional amendments through popular power rather than by legal means would disrupt the country’s stability.
  26. The General Comptroller of Venezuela, Elvis Amoroso, barred opposition leader (and interim president according to many countries) Juan Guaidó from holding public office for 15 years.
  27. The European Parliament voted to ban single-use plastics
  28. The President of North Macedonia, Gjorge Ivanov, refused to sign several bills passed by the Parliament, showing his opposition to the name-change deal signed between his country and Greece.
  29. The Prime Minister of Canada, Justin Trudeau, condemned the leak of information pertaining to a possible appointment to the Supreme Court. Meanwhile, conservatives asked the federal judicial affairs commissioner to investigate this issue.         

New Scholarship

  1. Alex Schwartz, International Judges on Constitutional Courts: Cautionary Evidence from Post-Conflict Bosnia, Law and Social Inquiry (2019) (questioning the value of hybrid courts in light of the case study of the Constitutional Court of Bosnia-Herzegovina, and claiming that its foreign judges have not provided a reliable counterbalance to ethnographical divisions on the Court and have probably affected the Court’s tenuous authority)
  2. David Landau, Yaniv Roznai & Rosalind Dixon, From an unconstitutional constitutional amendment to an unconstitutional constitution? Lessons from Honduras, Global Constitutionalism (2019) (examining the possibility of ‘unconstitutional constitutions’ or the ‘unconstitutionality of original constitutional provisions’ using Honduras as case study)
  3. Tom Gerald Daly, Democratic Decay: Conceptualising an Emerging Research Field, Hague Journal on the Rule of Law (2019) (exploring the advantages of conceptualizing, as a research field, the scattered cross-disciplinary literature on the creeping deterioration of democratic rule worldwide)
  4. Nicole Scicluna & Stefan Auer, From the rule of law to the rule of rules: technocracy and the crisis of EU governance, West European Politics, (2019) (examining two trends emerging from the eurozone crisis that diminish the quality of democracy in the EU and its member states: reliance on non-majoritarian institutions and an emphasis on coercive enforcement)
  5. David Law & Hsiang-Yang Hsieh, Judicial Review of Constitutional Amendments: Taiwan (forthcoming 2019 ) (arguing that “hard” review, “soft” review, and judicial review of constitutional amendments can and should all be arrayed along the same spectrum of judicial power, and questioning whether the concept of “dialogic” judicial review is especially meaningful using Taiwan as a case study)
  6. Núria Reguart-Segarra, Business, Indigenous Peoples’ Rights and Security in the Case Law of the Inter-American Court of Human Rights, Business and Human Rights Journal (2019) (analyzing, in light of the interrelation between business, human rights and security, the Inter-American Court of Human Rights’ case law on indigenous property rights)
  7. Tarunabh Khaitan, Constitutional Directives: Morally‐Committed Political Constitutionalism, Modern Law Review (2019) (presenting constitutional directives as obligatory telic norms, addressed primarily to the political state, and understanding them as a key tool to realize a morally‐committed conception of political constitutionalism.)
  8. Nimer Sultany, Arab constitutionalism and the formalism of authoritarian constitutionalism, (forthcoming 2019) (challenging different manifestations of a “formalist” approach to constitutional theory, and arguing that some categories used to understand Arab constitutions, are neither analytically illuminating nor descriptively informative)

Calls for Papers and Announcements

  1. Católica Law Review welcomes the submission of articles in the field of Public Law from all legal scholars and practitioners for the January issue of 2020. The deadline for applications is September 30, 2019.
  2. KU Leuven offers scholarships to researchers and alumni from the Global South to conduct research for up to 90 days in Belgium. Applications must be submitted by May 10, 2019. 
  3. The African Court on Human and Peoples’ Rights, the African Commission on Human and Peoples’ Rights, and the African Committee of Experts on the Rights and Welfare of the Child call for papers for the third volume of the African Human Rights Yearbook (AHRY). Abstracts should be submitted before or by 30 April 2019
  4. The ICON-S Colombian Chapter calls for proposals for its forthcoming Second National Conference on ‘Law, Politics and Deliberation’ to be held on October 24-25, 2019 in Manizales. Interested scholars can submit their proposals to iconsmanizales2019@gmail.com on or before July 15, 2019.
  5. The Editors of the Melbourne Journal of International Law (‘MJIL’) invite submissions on areas of interest in international law for volume 20(2), to be published in December 2019. Contributions must be submitted by July 1, 2019.   
  6. The European University Institute, University of Florence and Bocconi University convene the Inaugural Conference on “Constitutional Challenges in the Algorithmic Society”. This Conference is organized in the framework of the IACL Research Group “Algorithmic State, Society and Market – Constitutional Dimensions”, and will take place on May 9-11, 2019 in Florence.
  7. The Institute for Global Law and Policy (IGLP) at Harvard Law School calls for applicants who are interested to participate in its Visiting Researcher Program. The deadline for applications is April 15, 2019.
  8. The Turkish Society of General Theory of State organizes a conference on “Transformation of the Concept of the State and Rethinking ‘Allgemeine Staatslehre’ in German and Turkish Perspectives” at Galatasaray University, Istanbul on May 3rd, 2019 in cooperation with Friedrich Ebert Stiftung. For more information about the Conference, click here.    

Elsewhere Online

  1. Meg Russell, How did parliament get into this Brexit mess, and how can it get out? The Constitution Unit
  2. Nicolás Carrillo-Santarelli, An Analysis of the Legal Obligations of the ELN Guerrilla and Third States in the Aftermath of the Attack Against a Colombian Police Academy (Part I), OpinioJuris
  3. Anne Applebaum, Theresa May isn’t the adult in the room. She’s part of the problem, The Washington Post
  4. Philippe LeDoux, Inclusive Marriage for Taiwan, JURIST
  5. Mireia Grau Creus, States Reactions in Turbulent Times and the Erosion of the Rule of Law: The Trial of the Catalan Pro-Independence Leaders, IACL-AIDC Blog
  6. Agne Limantė, Lithuania Introduces Individual Constitutional Complaint, Verfassungsblog
  7. Adam Ratzlaff, Why cuts to affirmative action programs will undermine Brazil’s geopolitical ambitions, Global Americans
  8. Raul Sanchez Urribarri, Australia’s Recognition of Juan Guaidó as Venezuela’s Interim President, Australian Institute of International Affairs
  9. Stephen Coutts, Bold and Thoughtful: The Court of Justice Intervenes in Nationality Law Case C-221/17 TJEBBES, European Law Blog
  10. Lindsay Aqui, How the story of Britain and Europe began: Was Brexit inevitable? LSE Brexit Blog
  11. Michael Wines, Will the Supreme Court End Gerrymandering? Arguments Begin This Week, The New York Times
  12. Neil Siegel, The Anti-Constitutionality of Court-Packing, Balkinization
  13. Jaakko Husa, Merging Comparative Law and Legal History? Thesis and Scepticism in Finland, IACL-AIDC Blog
  14. Kevin Jon Heller, Judge Ozaki Must Resign — Or Be Removed, OpinioJuris
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Published on April 1, 2019
Author:          Filed under: Developments
 

Invitation from I-CONnect — Books for Review

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

We are once again inviting our readers to express an interest in reviewing books in public law here at I-CONnect. The list of books we have received at I-CONnect for this purpose is available below.

  1. Antonia Baraggia, Ordinamenti giuridici a confronto nell’era della crisi (G. Giappichelli Editore 2017)
  2. Adelle Blackett, Everyday Transgressions: Domestic Workers’ Transnational Challenge to International Labor Law (Cornell 2019)
  3. Giacomo Delledone & Giuseppe Martinico (eds.), The Canadian Contribution to a Comparative Law of Secession (Palgrave 2019)
  4. Rosalind Dixon (ed.), Australian Constitutional Values (Hart 2018)
  5. Luisa Fernanda Garcia (ed.), Justicia y democracia (Universidad del Rosario 2017)
  6. Giuseppe Franco Ferrari, Reijer Passchier & Wim Voermans (eds.), The Dutch Constitution Beyond 200 Years (Eleven International 2018)
  7. Devesh Kapur & Madhav Khosla (eds.), Regulation in India: Design, Capacity, Performance (Hart 2019)
  8. Mariana Mota Prado & Michael J. Trebilcock, Institutional Bypasses: A Strategy to Promote Reforms for Development (Cambridge 2018)
  9. Arthur Peltomaa, Understanding Unconstitutionality: How a Country Lost its Way (Teja 2018)
  10. Patricia Popelier & Maja Sahadžić (eds.), Constitutional Asymmetry in Multinational Federalism (Palgrave 2019)
  11. Eneida Desiree Salgado, Reforma Politica (Editora Contracorrente 2018)
  12. Alain Supiot & Sitharamam Kakarala (eds.), La loi de la langue: Dialogue euro-indien (Schulthess 2017)

Please email my colleague Trish Do by April 15, 2019, if you would like to review one of these books. A confirmation will follow. Preference will be given to early-career scholars and first-time I-CONnect contributors.

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Published on March 28, 2019
Author:          Filed under: Reviews
 

Joint Symposium on “Towering Judges”: Justice P.N. Bhagwati: A Towering Judge with a Divisive Legacy

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in Transformative Constitutions.” The introduction to the joint symposium can be found here.]

Rehan Abeyratne, The Chinese University of Hong Kong

Justice P.N. Bhagwati, who served on the Supreme Court of India from 1973-86 (including as Chief Justice from 1985-86) is widely regarded as the most influential jurist in post-independence India. He was the main architect of public interest litigation (PIL) in the 1980s. Moreover, his engagement with the press and civil society, along with his post-judicial career as a global advocate for human rights, made him a well-known figure beyond legal circles and kept him in the limelight long after his retirement from the Court.   For these reasons, Justice Bhagwati is a towering judge. However, as Iddo Porat and I discussed in our introductory post, the fact that a judge is “taller” than their peers, does not mean that their legacy is necessarily positive. This post critically examines Justice Bhagwati’s legacy, looking at his jurisprudential, institutional, and post-retirement contributions to the Indian judiciary and beyond.

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Published on March 27, 2019
Author:          Filed under: Analysis
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Kenyan High Court upheld the constitutional rights to maternal dignity and reproductive healthcare.
  2. The Constitutional Court of Bavaria ruled that the ban preventing judges from wearing headscarves is permissible.
  3. The U.S. Supreme Court ruled in a 5-4 decision that the administration has the authority to pick up and detain immigrants for deportations at any time.
  4. The Constitutional Court of Moldova declared the unconstitutionality of the provision establishing that the refusal of the criminal prosecution authorities to receive complaints can be challenged before the investigating judge no later than five days from the moment of refusal.
  5. The Constitutional Court of Moldova held that the renunciation of appeals against ruling rejecting claims in payment-order proceedings is unconstitutional.
  6. The European Court of Justice held that internal borders – even when border control has been reintroduced – cannot be equated to an external border.
  7. The European Court of Human Rights rejected the request on interim measures for torture claims, arguing that those measures can be applied only  when there is an imminent risk of irreparable harm.

In the News

  1. President Trump issued his first veto on Congress resolution rejecting the presidential declaration of national emergency.
  2. Kassym-Jomart Tokayev succeeded Nursultan Nazarbayev, who resigned as President of Kazakhstan after almost 30 years in power.
  3. The Speaker of the House of Commons ruled out another vote on Brexit deal, unless it is substantially different.
  4. The Mexican President signed a vow that he will not change the constitutional limit of a single six-year term.
  5. Theresa May informed the European Council that the UK is asking for an extension of Article 50 until June 30, 2019.
  6. The Philippines has officially withdrawn from the International Criminal Court.
  7. The Communication Committee of the Egyptian Parliament passed legislation to protect the right to privacy.

New Scholarship

  1. MS. Kuo, Control by Aggregation? Critical Reflections on Global Constitutionalism in the Shadow of Looming Transnational Emergency Powers (2019) (rethinking the relationship between rights protection, global constitutionalism and aggregate powers preventing transnational governance).
  2. M. St-Hilaire, P.F. Baud and E.S. Drouin, The Constitution of Canada as Supreme Law: A New Definition (2019) (proposing a new definition of the Canadian Constitution as supreme law).
  3. G. Ablavsky, Empire States: The Coming of Dual Federalism (2019) (offering an alternate account on the development of federalism as a form of centralization).
  4. C.E. Haupt, Sex and the First Amendment Through the Lens of Professional Speech (2019) (providing an interesting review of professional speech doctrine and how this doctrine might apply to future conflicts concerning reproductive rights and transgender healthcare).
  5. D.S. Cohen, Silence of the Liberals: When supreme Court Justices Fail to Speak Up for LGBT Rights (2019) (arguing that, even if the Supreme Court repeatedly protected gay rights, the liberal justices of the Court remained silent on this specific topic). 
  6. A. Stone, Freedom of Expression in Asia (2019) (offering a comprehensive outline of freedom of expression in Asian constitutions and arguing how the different approaches show how Asian constitutionalism has distinctive characteristics).
  7. R. Leckey, Assisted Dying, Suspended Declarations, and Dialogue’s Time (2019) (recounting Quebec and Canada experiences with drafting legislations on assisted suicide).
  8. R. Weill, T. Kritzman-Amir, Between Institutional Survival and Human Rights Protection: Adjudicating Landmark Cases of African Undocumented Migrants in Israel in a Comparative International Context (2019) (offering a complete analysis of Israeli case law on the rights of undocumented immigrants and arguing for a new approach to be taken by courts).
  9. B.M. Wilson, C. Gianella, Overcoming the Limits of Legal Opportunity Structures: LGBT Rights’ Forking Paths in Costa Rica and Colombia (forthcoming) (providing an interest analysis of the different level of protection of LGBT rights in Costa Rica and Colombia).

Call for Papers and Announcements

  1. The European Public Law Organization welcomes applications for the Academy of European Public Law, which will be held from August 26, to September 14, 2019 in Athens. Applications should be submitted by June 29, 2019 (April 20, 2019 for Early Bird applications).
  2. The Investment Migration Council welcomes submissions for the “4th Annual Investment Migration Conference: International Mobility of the Wealthy and Global Inequality”, to be held on June 3, 2019 in Geneva. Abstracts of no more than 500 words should be submitted by March 30, 2019.
  3. The Rule of Law Monitoring Center, Warsaw, Poland, launched a new online resource on Rule of Law in Poland entirely in English.
  4. The Italian Association of Comparative Law will hold its XXV Biennial Colloquium “Food Law: A Comparative Perspective”. The event will be held in Parma, on May 23-25, 2019.
  5. The American Society of Comparative Law and the University of Missouri School of Law invite all interested scholars to submit panel or paper proposals for the Annual Meeting of the American Society of Comparative Law entitled “Comparative Law and International Dispute Resolution Processes”. The event will be held at University of Missouri School of Law on October 17-19, 2019. The deadline for submission is May 20, 2019.
  6. The Spanish Association of International Law and International Relations Professors (AEPDIRI), in cooperation with the University of Granada welcome submissions for its 28th Conference “A New World, A New Europe. Reshaping the European Union in the Era of Brexit” to be held on September 18-20, 2019, in Granada. Abstracts of 1000-1500 words, alongside a CV, shall be submitted by April 10, 2019.
  7. The Spanish Association of International Law and International Relations Professors (AEPDIRI), in cooperation with the University of Castilla – La Mancha welcome submissions for the Jean Monnet International Conference “The European Union and Material and Immaterial Walls: Challenges for Security, Sustainability and the Rule of Law” to be held in Cuenca, on May 29-20, 2019. Abstracts of 1000-1500 words, alongside a CV, shall be submitted by April 1, 2019.

Elsewhere Online

  1. D.R. Cameron, After House of Commons rejects Brexit deal again and no-deal exit and calls for Article 50 extension, Theresa May considers third vote – but the Speaker says no, Yale Macmillan Center
  2. K. McCall-Smith, The Realities of Being Global: Treaty Law and Brexit, UK Constitutional Law Association
  3. S. Lashyn, Brexit Means Brexit: Does it so When It Comes to EU Citizenship?, EJIL: Talk!
  4. A. Alemanno, The Birth of Political Europe, Verfassungsblog
  5. L. Kirchmair, Fight Fire with Fire – a Plea for EU Information Campaigns in Hungarian and Polish, Verfassungsblog
  6. D. Guilfoyle, Part I – This is not fine: The International Criminal Court in Trouble, EJIL: Talk!
  7. T. Van Poecke, The IHL Exclusion Clause, and why Belgian Courts Refuse to Convict PKK Members for Terrorist Offences, EJIL: Talk!
  8. T.T. Koncewicz, L. Strother, The Role of Citizen Emotions in Constitutional Backsliding – Mapping Out Frontiers of New Research, Verfassungsblog
  9. R. Hazell, B. Morris, O. Hepsworth, Comparing European monarchies: a conference first, The Constitution Unit
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Published on March 25, 2019
Author:          Filed under: Developments
 

Conference Report–Liberalism, Democracy, and Constitutionalism: Three Categories in Search of Authority

Shubha Ghosh, Crandall Melvin Professor of Law, Syracuse University

Comparativists, constitutional law aficionados, and global citizens were the perfect audience for the conference on “The Future of Liberal Democracy,” held at The University of Texas at Austin on February 21-23, 2019. Professors Richard Albert and Sanford Levinson assembled leading scholars from across the globe for a two-and-a-half day symposium exploring whether the current emergence of authoritarian regimes, here and abroad, is a sign of a dark future or the strident cries of an imploding conservatism. What follows is a distillation of the dialogue at this conference, with brief mentions of some of the many scholars who participated. Apologies to those not mentioned.

Part-festschrift, part-book talk, part-panel discussion, the Texas symposium placed Trumpism in the broader context of European authoritarianism, as playing out in Hungary and Poland. A forum on the forthcoming “Democracy and Dysfunction,” by Sanford Levinson and Jack Balkin opened the proceedings. This unique book brings together letters between Levinson and Balkin written from 2016 and 2018, tracing the events leading up to the surprising results of November 2016 and the aftermath. Panels on “Illiberal Constitutionalism,” “The Erosion of Constraints on Executive Power,” Managing Difference and Diversity,” “The Trump Phenomenon: American Exceptionalism or Global Trend?,” and “Constitutional Replacement by Constitutional Amendment” followed. In the midst of these heated discussions was a festschrift to political scientist Gary Jacobsohn and his 2010  book Constitutional Identity. Four critical themes emerged from the symposium which this blog space allows for exploration.

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Published on March 23, 2019
Author:          Filed under: Reviews
 

Joint Symposium on “Towering Judges”: A Foundational, not Towering, Judge

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The author in this post formed part of a panel on “Towering Judges in New/Mixed Constitutions.” The introduction to the joint symposium can be found here. Parts of this blog post are extracted from the paper presented by the authors at the conference and to be published with the other papers from it.]

Dr. Mara Malagodi, Senior Lecturer, City, University of London

A judge should not be “towering” – that reminds me of the ivory tower. A judge should meet the expectations of the commoners. The tower is a way of separating the judge from living realities. As a judge, I wanted to be in the foundations, not in the tower.

Kalyan Shesthra, Nepal’s former Chief Justice.[1]

Dramatic political circumstances may give rise to a particular type of towering judicial figures. An explosive context has the potential to trigger a sort of “fight or flight” judicial response; thus, those judges who demonstrate the resilience, confidence, and moral integrity to stand their ground amidst cataclysmic events and political storms represent a subset of heroic judges. They make the conscious choice to fight and resist with a view of upholding the constitutional role of their institutions, preserving their professional integrity, and protecting their identity as dispensers of justice. In doing so, towering judges in dramatic contexts charter a course for other judges to follow, which marks what could be described as a “judicial True North”. The modalities of judicial resistance in the midst of political upheaval vary enormously depending on the personality of individual judges and the constitutional culture in which they operate. What appears to be the True North of towering judges in the midst of the political maelstrom, however, is a commitment to upholding the values of constitutionalism.

One of such towering judges is Nepal’s former Chief Justice, Kalyan Shrestha (b. 1951). His eleven-year Supreme Court tenure (2005-2016) corresponded to one of the most turbulent periods of Nepali history. He was elevated to the Supreme Court at the twilight of Nepal’s ten-year-long civil war (1996-2006) and his tenure overlapped with the country’s post-conflict transition to democracy and constitution-building process (2008-2015). His tenure encompassed a bout of emergency rule and royal autocracy; the election of two Constituent Assemblies in 2008 and 2013; the formation of an interim government headed by the then Supreme Court’s Chief Justice Khil Raj Regmi; the beleaguered attempts to secure a transitional justice process; two devastating earthquakes; and the promulgation of Nepal’s embattled current constitution in September 2015.

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Published on March 22, 2019
Author:          Filed under: Analysis
 

Joint Symposium on “Towering Judges”: Judicial Minimalism as Heroic: Chief Justice Chan Sek Keong, Singapore’s Unlikely Towering Judge

[Editor’s Note: This is part of the joint I-CONnect/IACL-AIDC Blog symposium on “towering judges,” which emerged from a conference held earlier this year at The Chinese University of Hong Kong, organized by Professors Rehan Abeyratne (CUHK) and Iddo Porat (CLB). The authors in this post formed part of a panel on “Towering Judges in New/Mixed Constitutions.” The introduction to the joint symposium can be found here. Parts of this blog post are extracted from the paper presented by the authors at the conference and to be published with the other papers from it.]

Jaclyn L Neo, National University of Singapore, and Kevin YL Tan, National University of Singapore and Nanyang Technological University

Judges can only ‘tower’ in environs where appropriate opportunities exist for them to do so. For that reason, they are more likely to be found in common law than civil law jurisdictions. They are also more likely to emerge in younger jurisdictions where the law is less settled or where local conditions require a significant departure from the established judicial canons. On that score, a towering judge should have emerged in Singapore a long time ago. A small but new jurisdiction that attained its independence in 1963, no major judicial figure, much less a towering judge was to appear until Chan Sek Keong was appointed third Chief Justice of Singapore in 2006.

Towering judges don’t always look the part. A small, shy, retiring man, Chan looks much more like an erudite academic than the judicial giant he is. Yet, it was he who single-handedly transformed the jurisprudence of public law in Singapore through his judgments and leadership of the court. Under his leadership, public law – which had, for half a century been treated as a marginal if inconvenient subject – moved to the mainstream of judicial discourse. Chan’s significance as a towering judge may be reflected in three ways.

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Published on March 19, 2019
Author:          Filed under: Analysis
 

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. Moldova’s Constitutional Court has approved the results of last month’s general election.
  2. The U.S. Supreme Court is set to hear a case regarding freedom of speech and the government’s right not to trademark.
  3. The Jamaican Constitutional Court will hear a claim challenging the constitutionality of the state of emergency.
  4. The Turkish Constitutional Court ruled that in certain cases requiring the applicant to pay certain fines or tenders violates the right of access to court.
  5. The Constitutional Court of Ukraine found an article of the penal code to be unconstitutional.

In the News

  1. The Malaysian cabinet has agreed to amend the constitution.
  2. The Russian Duma has passed a series of bills outlawing spreading fake news and disrespecting authorities.
  3. In Iran, a human rights lawyer has been sentenced to 38 years in prison for spreading news against the state and insulting the leader.
  4. The Colombian President has objected to a War Crimes Tribunal Bill.
  5. The Trump Administration asks the Supreme Court to decide whether the Constitution lets the government ask whether people are American citizens.
  6. Algerian President calls for a national conference to draft a new constitution.
  7. The ruling party in Zimbabwe will initiate a constitutional amendment to maintain quota for women in parliament.

New Scholarship

  1. Asli U. Bali and Hanna Lerner, Religion and Constitution Making in Comparative Perspective, in David Landau and Hanna Lerner (eds), Handbook on Comparative Constitution Making (Edward Elgar, 2019 forthcoming) (reviewing some of the key questions that arise in constitution-writing concerning the relationship of state and religion, including in religiously-divided societies)
  2. Brice Dickson, The Irish Supreme Court: Historical and Comparative Perspectives (Oxford University Press, 2019) (providing a scholarly and readable account of the Supreme Court of Ireland’s jurisprudence from its foundation in 1924 to the present day)
  3. Domenico Giannino and Antonio Manzoni, The commons: an innovative basis for transnational environmental law in the era of Anthropocene?, 11 Perspectives on Federalism (2019) (introducing a theoretical-legal basis for the recent innovative decisions by the Colombian Supreme Court of Justice and by the Inter-American Court of Human Rights on the issue of environmental justice)
  4. Hakeem Yusuf and Tanzil Chowdhury, The Persistence of Colonial Constitutionalism in British Overseas Territories, 8 Global Constitutionalism (2019) (arguing that despite the UK Government’s exaltations of self-determination of its Overseas Territories, provisions of colonial governance persist in their constitutions)
  5. Thomas Kadri and Kate Klonick, Facebook v. Sullivan: Building Constitutional Law for Online Speech (2019) (discussing how disputes about harmful speech are to be adjudicated and the boundaries of free speech in online platforms)
  6. Robert F. Nagel, Conservatism and Constitutionalism in the United States, U of Colorado Law Legal Studies Research Paper No. 19-5 (2019) (examining a range of ideas about what conservatism is and rejects the possibility that most of these can be expected to discipline the temptation to impose personal moral visions and aspirations)

Calls for Papers and Announcements

  1. The Indian Journal of Tax Law (IJTL) calls for submissions of manuscripts on all areas of taxation of contemporary relevance for its new volume.
  2. Visakha Journal of Environmental Law (VJEL) invites paper submissions for its new volume.
  3. Gonzaga University School of Law‘s Journal of International Law welcomes submissions for its 2019 upcoming symposium under the theme of “The Future of Law in the Information Age” to be held on April 4, 2019.
  4. The African Review of Economics and Finance (AREF) calls attention to the 2019 annual conference, which will be hosted at Wits Business School in Johannesburg from 29 to 30 August 2019.
  5. George Washington University Law School will be hosting the second Junior Intellectual Property Scholars Association (JIPSA) workshop of 2019! The event will take place May 28-29, 2019.
  6. The Faculty of Law at the Chinese University of Hong Kong will host a Symposium on “Global Constitutionalism: Asia-Pacific Perspectives” on 28-29 Mar 2019.
  7. The Leuven Centre for Public Law (LCPL) and RIPPLE (Research in Political Philosophy Leuven) are inviting applications for the conference “Democratic renewal in times of polarization. The case of Belgium” which will be held in Leuven on 19-20 September 2019.

Elsewhere online

  1. Lyle Denniston, How far is ERA from being put in the Constitution?, Constitution Center
  2. Irma Johanna, Global tax governance in the G20 and the OECD: What can be done?, Leiden Law Blog
  3. Grace Yang, China’s New Gender Employment Discrimination Laws: Just to be Perfectly Clear, China Law Blog
  4. Could Germany’s digital education initiative threaten states’ rights?, Deuchewelle
  5. Richard H. Pildes, How the Supreme Court weakened Congress on emergency declarations, The Washington Post
  6. Sir Paul Lever, The EU is Germany writ large, Spiked

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Published on March 18, 2019
Author:          Filed under: Developments
 

Constitutionalizing Autocracy: A General Election Under Thailand’s 20th Constitution

Khemthong Tonsakulrungruang, Chulalongkorn University

Thailand is heading toward the first election under the 2017 Constitution on March 24th. It has been eight years since the last valid election. The 2014 Election was invalidated by the Constitutional Court because the anti-government demonstrators successfully blocked voters from entering the voting booths. Shortly afterward, Prayuth Cahn-ocha, the then-Army Commander, staged a coup. His government, known as the National Council of Peace and Order (NCPO), promised a better constitution and long-lasting democracy. However, the 2017 Constitution and the upcoming election are anything but democracy. Instead, the first election under the 2017 Constitution will be a showcase of how constitutionalism can be abused by an unscrupulous autocrat whose real intention is to constitutionalize his authoritarian regime.

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Published on March 16, 2019
Author:          Filed under: Developments