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Blog of the International Journal of Constitutional Law

Virtual Bookshelf: A Review of “Constitutional Dialogue in Common Law Asia” by Po Jen Yap

—Richard Albert, The University of Texas at Austin

The concept of constitutional “dialogue” has become prevalent in public law scholarship. The term is commonly used to describe one particular form of interaction between courts and legislatures in connection with the interpretation of constitutional rights–an interaction characterized by a judicial-legislative exchange on the proper outcome rather than by immediate judicial finality on the meaning of the constitution.

Scholars have often studied the concept of constitutional dialogue as it occurs (or not) in Commonwealth jurisdictions, namely Australia, Canada, New Zealand and the UK. Yet there is little scholarship on dialogue in Asia. In his book on Constitutional Dialogue in Common Law Asia (OUP 2015), Po Jen Yap seeks to change that.

Yap investigates the constitutional systems of three former British colonies: Malaysia, Singapore, and Hong Kong. All three continue to observe common law norms. Yet none of these three constitutions entrenches a special structural device that enables the legislature to reverse or avoid a constitutional judgment that strikes them as incorrect or undesirable. The only recourse under any of these three constitutions is constitutional amendment.

Yet Yap shows that dialogic constitutional review is nonetheless possible in all three jurisdictions in light of their courts’ capacity to draw from judicial techniques and canons that foster debate with other political branches on constitutional values. The book focuses specifically on dialogic constitutional review of freedom of expression, freedom of religion, the right to equality, and criminal due process rights. In the ends, Yap concludes that dialogic review is superior to legislative and judicial supremacy: 

In seeking the harmony between the settled expectations of the past and the evolving needs of a changing society, the judiciary must convene an enduring and continuous colloquy on rights with the political branches of government, and the polity at large. … This dialogue between the coordinate branches of government should be viewed as a constitutional blessing, and not a bane, for it conjoins the best in both statecraft and adjudication. (227)

This book will interest scholars of constitutional review and of constitutional rights more generally. It is also a much needed window into constitutional review in Asia. Yap does a great service to the field by writing what will serve for many as an introduction to three new jurisdictions, and as a challenge to the view that dialogue occurs only when authorized by special constitutional devices.

Suggested Citation: Richard Albert, Book Review, “Constitutional Dialogue in Common Law Asia” by Po Jen Yap, Feb. 9, 2018, at: http://www.iconnectblog.com/2018/02/virtual-bookshelf-a-review-of-constitutional-dialogue-in-common-law-asia-by-po-jen-yap

 

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Published on February 9, 2018
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Virtual Bookshelf: A Review of “The Italian Parliament in the European Union” by Nicola Lupo and Giovanni Piccirilli

—Richard Albert, The University of Texas at Austin

In the most recent installment in the new Hart Series on Parliamentary Democracy in Europe, Nicola Lupo (LUISS Rome) and Giovanni Piccirilli (LUISS Rome) bring us an edited volume on The Italian Parliament in the European Union (Oxford: Hart 2017). Lupo and Piccirilli have assembled roughly 20 scholars to explore the interrelationship(s) between the Italian Parliament and the European Union.

The book is divided into four major parts:

  1. “Italy Coping with the Process of European Integration,” which contains four chapters;
  2. “The Formation of the National Position in the EU,” which likewise contains four chapters, including a fascinating chapter on the tensions between unitarism and regionalism by Cristina Fasone (LUISS Rome) entitled “The Coordination with the Regional Councils,” in my view an illuminating comparative complement to the new line of American literature on cooperative and uncooperative federalism;
  3. “The Italian Parliament in the ‘Euro-national’ Parliamentary System,” which contains six chapters, including one on treaty-making and -changing by Barbara Guastaferro (Naples “Federico II”) entitled “Procedures vis-à-vis the “Masters of the Treaties’: The Parliamentary Role in the Revision of Treaties”;
  4. “The Italian Future in a European Perspective,” consisting of three chapters, including a contribution by Maria Romaniello (LUISS Rome) on “The Italian Symmetrical Bicameral System in EU Affairs.”

The volume is bookended by a Foreword by Andrea Manzella (LUISS Rome) and an Afterword by Peter Lindseth (UCONN).

In light of my own interests in constitutional change and amendment, I was particularly drawn to the concluding chapter on “‘Silent’ Constitutional Transformations: The Italian Way of Adapting to the European Union,” co-authored by Lupo and Piccirilli. The premise of the chapter is a paradox: the Italian Constitution has changed dramatically over the years, though often without a corresponding alteration to its text. This is what Lupo and Piccirilli describe as a “silent constitutional transformation.” They perceive this phenomenon with regard both to Italy’s membership in the European Union and also to the country’s own constitutional arrangements. The Italian Constitution, they suggest, is no longer what it once was but one could not identify all of the intervening changes from a plain reading of the country’s formal constitution.

Begin with Article 11 of the Constitution. Since 1947, it states that “Italy agrees, on conditions of equality with other States, to the limitations of sovereignty that may be necessary to a world order ensuring peace and justice among the Nations” and “promotes and encourages international organisations furthering such ends.” [p 323] The authors explain that this Article has been an important vehicle for the country’s integration into the European Union. Although there have been some formal constitutional amendments involving the European Union–including to Articles 81, 97, 117 and 122 [pp 323-24]–the authors stress that “the Italian participation in the European Union has been relying essentially on just legislative means … .” [p 325]

Thanks to the constitutional reference to sovereignty and its limitations, Italy has been capable to ensure the ratification of all the European Treaties by means of ordinary legislation and the legal effectiveness of EU law to the domestic legal order, allowing also the Italian Constitutional Court to progressively adapt its case law to the early affirmation of the primacy and direct effect by the European Court of Justice as early as the 1960s. [p 323]

The same kind of “silent constitutional transformation” is evident in the changing role of the Parliament in Italy’s domestic constitutional order. A particularly powerful example developed by the authors concerns the evolution of Italian parliamentary rules of procedure and their consequences for constitutional law.

There is much more to be said about this important chapter and indeed about the entire volume. I invite our readers to have a look at the book for themselves. I am confident it will be well worth the time.

Suggested Citation: Richard Albert, Book Review, “The Italian Parliament in the European Union” by Nicola Lupo and Giovanni Piccirilli, Feb. 7, 2018, at: http://www.iconnectblog.com/2018/02/virtual-bookshelf-the-italian-parliament-in-the-european-union-by-nicola-lupo-and-giovanni-piccirilli

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Published on February 7, 2018
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What’s New in Public Law

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

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 halted the execution of an inmate who suffers from dementia.
  2. The Supreme Tribunal of Venezuela prevented the opposition coalition from participating in the upcoming presidential elections
  3. The Spanish Constitutional Court ruled that in order to proceed with the investiture of Carles Puigdemont as President of the Catalonian Government, he must be physically present at the swearing-in session in Barcelona, and count with a judge’s permission to attend. As a result, the Parliament of Catalonia decided to postpone the election of a new President.
  4. The Constitutional Court of Thailand agreed to analyze the constitutionality of the recent amendments to an anti-graft law.
  5. The Constitutional Court of Malta held that the right to remain silent is also applicable in proceedings conducted by parliamentary committees.
  6. The Supreme Court of India dismissed a petition seeking the deletion of several scenes from the film ‘Padmaavat’.
  7. The Constitutional Court of Bulgaria concluded that the Parliament’s refusal to accept MP Delyan Dobrev’s resignation is unconstitutional.
  8. The Federal Court of Malaysia ruled that religious conversion of minors, requires the consent of both parents.
  9. The Constitutional Court of Romania partially quashed a legal reform that sought to curtail the powers of an anti-corruption body and to suppress the presidential veto to the governmental appointment of senior prosecutors.
  10. The Constitutional Court of Zambia adjourned the examination of a petition regarding the eligibility of President Edgar Lungu as presidential candidate for the 2021 elections.
  11. The Constitutional Court of Slovenia held that the statutory provisions governing the financing and execution of referenda are unconstitutional.
  12. The Constitutional Court of Croatia dismissed a constitutional complaint filed by a public official who was sentenced in 2016 for war crimes committed in the 1990’s.

In the News

  1. The Canadian Government published the report drafted by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, regarding the appointment process of Justice Sheilah L. Martin to the Supreme Court of Canada.
  2. The Privacy Commissioner of Canada proposed a policy to remove or amend inaccurate, incomplete or outdated information from online search engines, in an attempt to protect personal reputation.
  3. José Arturo Sierra, former President of the Guatemalan Supreme Court of Justice, was murdered on the outskirts of Guatemala City.
  4. Ireland’s Prime Minister, Leo Varadkar, announced he will campaign for repealing the prohibition on abortion, which will be voted on at this summer’s referendum.
  5. Rodrigo Duterte, President of Philippines, declared that he wants the constitutional revision to the 1987 Constitution to be ready within this year.
  6. The South Sudanese National Constitutional Amendment Committee (NCAC) submitted to the Minister of Justice an amendment package aimed at making several existent security laws compatible with the Agreement on the Resolution of Conflict in the Republic of South Sudan signed in 2015.
  7. Romanian designated Prime Minister, Viorica Dancila, presented her newly-appointed cabinet members amidst protests.
  8. Russian President nominated Valery Zorkin as Chairman of the Constitutional Court.
  9. U.S. Supreme Court Associate Justice Ruth Bader Ginsburg said that she has no plans to retire soon from the Court.
  10. The new Vice President of the Colombian Supreme Court of Justice criticized a judicial decision taken by the Court’s Civil Chamber that required a news outlet to reveal its sources.
  11. Ecuador prepares to hold a constitutional referendum on February 4, 2018. Although the referendum contains several questions, the most important one asks the electorate whether presidential term limits should be reinstated into the Constitution.
  12. Simplice Comlan Dato, Justice of the Constitutional Court of Benin, resigned his post.
  13. The incumbent President of Czech Republic, Milos Zeman, won the second round of the presidential election held on 26-27 January 2018.
  14. The Scottish Minister for UK Negotiations on Scotland’s Place in Europe and the Welsh Cabinet Secretary for Finance and Local Government expressed concerns over the EU Withdrawal Bill, claiming that it allows the U.K. government to take control of previously devolved policy areas.
  15. The U.K. Lords Constitution Committee said that the EU Withdrawal Bill needs major amendments.
  16. The Cabinet Division of Bangladesh agreed to propose a constitutional amendment to extend the period of parliamentary seats reserved for female MPs from 10 to 25 years.
  17. Maldives’ opposition leaders petitioned the Supreme Court to suspend President Yameen Abdul Gayoom from his post due to corruption accusations.
  18. The President of Finland, Sauli Niinisto, was reelected for a second term in office.
  19. The Cambodian Constitutional Council will discuss a package of proposals to modify multiple provisions of the Constitution.
  20. Japan’s Primer Minister, Shinzo Abe, encouraged has encouraged broad agreement for amending article 9 of the Constitution.
  21. In the face of a petition filed before the Supreme Court of India by Rohingya forced migrants who seek to be recognized as refugees, the Indian Government contended that this is not a matter for the Court to intervene.
  22. The GERB political party of Bulgaria, will ask the Constitutional Court to determine whether the Istanbul Convention on Domestic Violence is compatible with the Constitution.
  23. Poland’s Senate passed a statute criminalizing speeches that ascribe to the Polish state any responsibility for the crimes committed by the Third Reich.
  24. The Kenyan government prohibited three private TV channels from broadcasting a symbolic presidential inauguration of an opposition leader, despite a judicial order suspending this prohibition.
  25. The German Federal Council (Bundesrat) asked the Constitutional Court to ban funding to support the activities of the right-wing National Democratic Party (NPD).
  26. The President of the Constitutional Court of Moldova, Tudor Panţîru, resigned to his post as Justice.
  27. Korean President Moon Jae-in urged Parliament to pass a constitutional amendment to expand decentralization.

New Scholarship

  1. Martin Loughlin, The Political Constitution Revisited, LSE Legal Studies Working Paper No. 18 (2017) (claiming that political constitutionalists have distorted John Griffith’s functional perspective of British constitutionalism)
  2. Sadaf Aziz, The Constitution of Pakistan: A Contextual Analysis (2018) (providing a contextual account of Pakistan’s constitutional laws and history)
  3. Andrew Arato, The Adventures of the Constituent Power (2017) (analyzing the democratic methods used by political communities to enact their basic law)
  4. Katharine G. Young, Proportionality, Reasonableness, and Economic and Social Rights, in Vicki Jackson and Mark Tushnet eds., Proportionality: New Frontiers, New Challenges (2017) (exploring the relationship between reasonableness review and proportionality in the framework of economic and social rights)
  5. Cormac S. Mac Amhlaigh, Who’s Afraid of Supra-State Constitutional Theory?: Two Reasons to Be Sceptical of the Sceptics, in K. Walton, W. Sadurski, M. Sevel eds., Legitimacy: The State and Beyond (2018), Edinburgh School of Law Research Paper No. 2017/23 (advancing two reasons to overcome the skepticism about bringing constitutionalism beyond the state)
  6. Benoit Frydman, From accuracy to accountability: subjecting global indicators to the rule of law, International Journal of Law in Context (2018) (arguing that, since social indicators are tools for global governance, they should be accountable via judicial review)
  7. Graham Butler, The Court of Justice as an inter-state court, Yearbook of European Law (2017) (analyzing the instruments of Article 259 TFEU and Article 273 TFEU for inter-state litigation between EU Member States before the Court of Justice of the European Union)
  8. Rivka Weill, Bills of Rights with Strings Attached: Protecting Death Penalty, Slavery, Discriminatory Religious Practices and the Past from Judicial Review, in Rosalind Dixon, Goeffrey Sigalet, and Grégoire Webber eds., Constitutional Dialogue: Rights, Democracy, Institutions (Forthcoming) (offering a theoretical and comparative framework of constitutional clauses –saving clauses– that shield certain pre-constitutional rules or practices from judicial review)
  9. Andrés Botero-Bernal and Mario Cajas-Sarria, Historia del Derecho en América Latina I, Precedente Journal of Law (2018) (introducing a first issue, out of two, entirely devoted to Legal History in Latin America) (in Spanish)
  10. Stefan Salomon, Self-determination in the Case Law of the African Commission: Lessons for Europe, VRÜ Verfassung und Recht in Übersee (2017) (inquiring into the postcolonial contexts of self-determination by focusing on the case law of the African Commission on Human and Peoples Rights –ACHPR– and arguing that legal developments of self-determination in the Global South have largely gone unnoticed in legal scholarship)
  11. Kitpatchara Somanawat, Constructing the Identity of the Thai Judge: Virtue, Status, and Power, Asian Journal of Law and Society (2018) (examining the exalted status of Thai judges, and contending that this status derives from a process of identity construction)

Special Announcement

Professor Mark S. Kende (James Madison Chair in Constitutional Law, Director of the Constitutional Law Center, Drake University Law School) shares a partial bibliography of 2017 Comparative Constitutional Law Books and Articles.

Call for Papers and Announcements

  1. The Institute for Global and Law and Policy (IGLP) at Harvard Law School, invites scholars to submit abstract and panel proposals for its forthcoming IGLP Conference to be held on June 2-3, 2018. The deadline for submission is March 16, 2018.
  2. The International Review of Contemporary Legal Issues invites submissions for its Third Issue to be published in June 2018. Contributions should be sent by April 30, 2018.
  3. The Association of Human Rights Institutes (AHRI) calls for paper and panel proposals for the general AHRI Human Rights Research Conference, which will take place at the University of Edinburgh Law School on 7-8 September 2018. Proposals should be sent by March 5, 2018.
  4. The Indian Journal of Law and Public Policy invites interested scholars to submit contributions for its next issue by February 28, 2018.
  5. The University of Aberdeen, in collaboration with the Horizon 2020 Marie Sklodowska-Curie programme offers six Early Stage Researcher positions to interested applicants who want to pursue a PhD degree focusing on how political concepts are used in the world. The deadline for applications is March 20, 2018.
  6. Tamil Nadu National Law School, in collaboration with Oxford Human Rights Hub invites paper submissions for its ‘International Conference on Affirmative Action and the Sustainable Development Goal of Gender Equality’. Abstract proposals should be sent by February 28, 2018.
  7. Konrad Adenauer Stiftung through its Rule of Law Program in Latin America welcomes papers written in Spanish or Portuguese for the 2018 Latin American Yearbook of Constitutional Law. The deadline for submitting contributions is March 31, 2018.
  8. The Central and Eastern European Network of Jurisprudence (CEENJ) calls for paper proposals for its XIIIth Annual Conference on “Jurisprudence in Central and Eastern Europe: Work in Progress 2018”. The deadline for submissions is June 1, 2018.
  9. The Peter McMullin Centre on Statelessness, at the University of Melbourne, invites scholars to apply for a scholarship to pursue a PhD degree on the areas of interest to the Center. Applications should be sent by February 19, 2018.
  10. The WZB Berlin Social Science Center invites interested scholars to apply for a Research Fellow position in the field of “Global Governance of Citizenship”. Application deadline is March 15, 2018,

Elsewhere Online

  1. Christina Zampas, Irish Government announces referendum on abortion, Reprohealthlaw Blog
  2. Vincent W.J. van Gerven Oei, While You Were Reforming the Justice System…, exit
  3. Sandra Martin, Fight to the death: Why Canada’s physician-assisted dying debate has only just begun, The Globe and Mail
  4. Vernon Bogdanor, The Lords has the right to ask the Commons to reconsider Brexit, The Guardian
  5. Patricia Popelier, Dynamic Federalism, 50 Shades of Federalism
  6. Pierre de Vos, The Cape Town Water Crisis: Why Is the DA Conflating Party and State?, Constitutionally Speaking
  7. Julienne E. Grant, UPDATE: Researching the Law of Latin America, GlobaLex
  8. Adam Bodnar, Free Men and Genuine Judges will Remember about Free Courts, Verfassungsblog
  9. Michal Ovádek, Drama or Serenity? Upcoming Judicial Appointments at the Slovak Constitutional Court, Verfassungsblog
  10. Meg Russell, The Lords and the EU Withdrawal Bill: 10 predictions, The Constitution Unit
  11. Henry Goodwin, The ‘rule of law crisis’, Europe’s most existential challenge, EUI Times
  12. Mark Elliott and Stephen Tierney, Sovereignty or Supremacy? Lords Constitution Committee Reports on EU (Withdrawal) Bill, U.K. Const. L. Blog
  13. Sawadogo Lamoussa, Beyond term limits: Burkina Faso’s attempt to tame the presidency and to strengthen constitutional checks, Constitutionnet
  14. Linda Greenhouse, The Chief Justice, Searching for Middle Ground, The New York Times
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Published on February 5, 2018
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One Step Forward, Two Steps Back? Constructive res judicata in Malaysian Constitutional Cases

Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution

–Shukri Ahmad Shahizam, LL.B. Candidate, London School of Economics

In a long-awaited judgement with large ramifications on cases throughout the country the apex court in Malaysia, the Federal Court, has thrown a spanner into the works of constitutional challenges against restrictions on fundamental freedoms.

Mat Shuhaimi v The Government of Malaysia (Civil Appeal No. 01 (f)-6-03/2017(W)) (Federal Court) (‘Shuhaimi 3’) concerns a constitutional challenge against the Sedition Act 1948 on the basis that its criminalization of ‘sedition’ on a strict liability basis is unconstitutional.

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Published on February 3, 2018
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Crisis and its Opposite: A Reminiscence of Same-Sex Marriage’s Most Successful Year (I-CONnect Column)

—James Fowkes, University of Münster Faculty of Law

[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.]

Amidst the talk of global crises of liberal constitutionalism and the rights-based causes of the progressive elite, it is worth taking a moment to pause and take a trip back to the most successful ever year for that banner progressive cause, same-sex marriage.

The trip is a short one, because there is a good argument that the year in question is 2017: the year of Trump and Brexit, of 34% of the vote for Marie le Pen and 12.6 % for the AFD, of populism and nationalism and xenophobia, and of progressives switching from progress to holding the line. And this, I want to suggest, is an instructive little data point to think about when we are trying to make up our minds about the state of the world.

In 2017, same-sex marriage legislation came into force in Finland, and was passed and came into force in Malta, Germany and, after a voluntary postal survey that turned out to signal 61.6% support, in Australia. Same-sex marriage was recognized by judicial decision in Austria, and by judicial decision, suspended for two years to give Parliament time to act, in Taiwan – the first national recognition of same-sex marriage in Asia, albeit a pending one.

Maybe Finland should instead be allocated to 2015, when the legislation was actually passed, and Taiwan kept out of the count until the legal effect of the judicial decision is felt. But even without those two, 2017 would be tied (with 2013) for the year in which the most new states joined the marriage equality fold.[1]

2017 also saw the European Court of Human Rights take another cautious slice out of the margin of appreciation by ruling that signatory states must recognize same-sex marriages performed in other states, although they may recognize them only as civil unions.[2] And to cherry the sundae, though not of course a final judgment nor one directly about same-sex marriage, 2017 also saw a strong signal from Indian Supreme Court justices that they will revisit the 2015 judgment in Naz Foundation upholding the criminalization of sodomy.[3]

This pattern cannot be dismissed as a fluke. More than half of the countries that have recognized same-sex marriage have done so in the last five years. And while it is in the most literal sense early days for 2018, the signs thus far are not of a weakening trend. Although the European Court of Justice has yet to issue its decision, Advocate-General Wathelet has taken the position that EU citizens who conclude same-sex marriages with non-EU citizens are entitled to have these recognized for residency purposes by all EU member states, regardless of whether the state recognizes such unions in its own domestic law.[4] And on January 10, the Inter-American Court of Human Rights issued a sweeping advisory opinion holding that the American Convention on Human Rights obliges all signatory states to recognize same-sex marriage. (The opinion also includes important rules on the rights of transgender persons).[5] The ruling is more significant than its status as an Advisory Opinion can make it appear, since mechanisms such as conventionality control mean that the Inter-American Court’s interpretations powerfully affect member state domestic law.[6]

All this is far from evidence that same-sex marriage will cover the globe any time soon. What I am interested in here, instead, is what it might tell us about the narrative of crisis that haunts so much current constitutional and political discussion.

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Published on January 31, 2018
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What’s New in Public Law

—Sandeep Suresh, Faculty Member, Jindal Global Law School

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 Supreme Court of India will hear a petition that seeks to live stream the hearings of important constitutional cases in the apex court.
  2. The Constitutional Court of Romania held that the repeal of those provisions in the Civil Servants’ Statute which enabled suspension of civil servants who faced criminal prosecution is unconstitutional.
  3. The Constitutional Court of Benin held that employees in the public sector have the right to strike which was earlier prohibited by a law passed by the Parliament last year.
  4. The Constitutional Court of Zimbabwe will hear the challenge against sections 23 and 71 of the Electoral Act which prohibit Zimbabweans living abroad from voting in local elections without physically going back to the country on February 7, 2018.
  5. The Constitutional Court of Russia rejected opposition leader Alexei Navalny’s complaint against the ban that barred him from being a candidate in the upcoming presidential election due to a past criminal conviction for corruption.

In the News

  1. The Government of Macedonia will send the new language law that mandates the use of Albanian language in all central government institutions, courts etc. to the Venice Commission for scrutiny.
  2. The Government of Canada informed that it will not intervene in the upcoming case before the Quebec Superior Court in which the validity of Quebec’s new law that bans people involved in public services from wearing face coverings will be challenged.
  3. The Chief Observer of the European Union’s Kenya Election Observation Mission advised Kenya to reform the country’s electoral system in light of the recent controversies surrounding the presidential election.
  4. The Parliament of South African convened to draft specific rules regarding impeachment of the President which is provided in Section 89 of the Constitution.
  5. The Supreme Court of Libya will hear an appeal against the draft constitution on the basis of the illegality of its adoption in the Constituent Assembly.

New Scholarship

  1. Nicholas Aroney and James Stellios, Rights in the Australian Federation, European Journal of Law Reform (2018 (looking at the position of rights in the Australian federation against the country’s constitutional history and its constitutional context).
  2. Luke Beck, The Role of Religion in the Law of Royal Succession in Canada and Australia, 43(1) Queen’s Law Journal (2018) (comparatively examining the laws of succession and constitutional protections of religious liberty in Canada and Australia).
  3. George H. Gadbois, Jr., Supreme Court of India: The Beginnings (Vikram Raghavan and Vasujith Ram eds., OUP 2017) (studying the Indian Supreme Court’s history and the role played by some of its major judgments in India’s polity till 1964).
  4. Ernest Lim and Cora Chan, Problems with Wednesbury Unreasonableness in Contract Law: Lessons from Public Law, 135 Law Quarterly Review (2018) (forthcoming) (pointing out the key problems with the current use of Wednesbury unreasonableness to control the exercise of discretion in contract law by English courts).
  5. Yahli Shereshevsky, Targeting the Targeted Killings Case – International Lawmaking in Domestic Contexts, 39(2) Michigan Journal of International law (2018) (forthcoming) (arguing against the Israeli administration’s current approach towards targeted killings in light of the Israeli Supreme Court’s Targeted Killings case in 2006).

Call for Papers and Announcements

  1. The Central European University, Budapest is currently inviting applications for the summer course on ‘Constitution Building in Africa’. The course will be held from July 2-13, 2018. The two-week research course intends to tackle complex societal, political, and legal problems in constitution-building from an interdisciplinary perspective, informed by field experience. The last date to apply for the course is February 14, 2018.
  2. The University College Dublin’s Sutherland School of Law is currently inviting applications for three PhD scholarships. The scholarships cover tuition fees (including for non-EU students) as well as a yearly stipend of €16,000. Even though the University is open to all subject areas, preference would be given to applications focusing on constitutional law. The last date to apply is January 31, 2018.
  3. Journal of Civil and Legal Sciences is inviting submissions for the journal’s upcoming issue (Vol.7, No.1). The last date for submission is February 20, 2018.
  4. Gulf Research Center Cambridge is currently inviting papers for the workshop titled ‘Gulf Cooperation Council Culture and Identities in the New Millennium: Resilience, Transformation, (Re)Creation and Diffusion’. This workshop is a part of the 9th Annual Gulf Research Meeting which will take place at Cambridge University from July 31-August 3, 2018. Interested scholars must submit their papers by February 10, 2018.
  5. The International Association of Constitutional Law is organizing the 10th IACL World Congress 2018 on ‘Violent Conflicts, Peace-Building and Constitutional Law’ in Seoul from June 18-22, 2018. The Association is specifically inviting papers for Workshop No. 27 titled ‘Accommodating Conflicts through Federal Arrangements: from conflict management to secession’. The last date to submit paper proposals is March 30, 2018.

Elsewhere Online

  1. Mathias Hong, The German Network Enforcement Act and the Presumption in Favour of Freedom of Speech, Verfassungsblog
  2. Editorial Board, The courts may address partisan gerrymandering. Virginia and Maryland, take note, The Washington Post
  3. Faizan Mustafa, Grab This Opportunity To Abolish Disqualification Due to ‘Office of Profit’, The Wire
  4. Charles Rothfeld, What’s the harm in a T-shirt?, SCOTUSblog
  5. Janaki Nair, Reading the Constitution, The Hindu
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Published on January 29, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—Born is the King: The Day When Effective Judicial Review Arrived

[Editor’s Note: This is the fifth and final entry in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here, Part II is available here and Part III is available here.]

—Tomáš Ľalík, Associate Professor at the Comenius University in Bratislava

Father Christmas or Ježiško (the Baby Jesus in Slovak) usually comes on time but at least as far as the Slovak constitutional law is concerned, Christmas came early this year. The incumbent President Andrej Kiska gave us a reason to celebrate ahead of the holiday when he finally surrender to the judgment I. ÚS 575/2016[1] of the Slovak Constitutional Court (‘SCC’) in the saga over judicial appointments to the Court.[2] His “gift” were three new judges (out of seven possible candidates), sworn in to the office on December 14.[3] The constitutional crisis involving legal, political and media battle is over after three and a half years; and the SCC is again at full strength. This short comment will first answer two critiques raised against the judgment and then foreshadow some long-term implications of the decision.

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Published on January 27, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—Perplexities of the Appointment Process Resolved by Means of “Fire and Fury”

[Editor’s Note: This is the fourth of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here and Part II is available here.]

—Kamil Baraník, Assistant Professor of Law, Comenius University in Bratislava

With the decision I. ÚS 575/2016, the I. Senate of the Constitutional Court of the Slovak Republic (SCC) ended a highly controversial and heavily politicized SCC justices’ nomination saga. The case originated in 2014 when a single-party parliamentary majority nominated six candidates for three vacant SCC judgeships. The president refused to appoint five of those candidates and claimed a broad discretionary right to that effect, based on a previous generally binding SCC’s constitutional interpretation that settled another prominent struggle over the scope of presidential appointment powers – the General Prosecutor Case, PL. ÚS 4/2012. The questionable quality of the proposed SCC candidates immediately raised eyebrows, as did the evident lack of safeguards against political exploitation of the nomination process.

The president ultimately accepted the SCC I. Senate decision and following its ratio appointed three new SCC justices. The president, however, announced that the struggle over the future of SCC’s appointment process is not over. In such a controversial issue that steadily raised the temperature of the political climate in Slovakia for years, one would expect at least an indication of a conciliatory tone in the SCC’s decision. Instead, the I. Senate resolved this constitutional dispute between president and the legislature by means of “fire and fury.”

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Published on January 26, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”—The President’s Appointments

[Editor’s Note: This is the third of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, and Part I is available here.]

—Marek Domin, Associate Professor at the Comenius University in Bratislava

The decision of the Constitutional Court (CC) of the Slovak Republic – I. ÚS 575/2016, and the following appointments to the Court by President Andrej Kiska, ended a long-drawn interpretive dispute over the extent of the presidential power to appoint the CC judges. Almost a quarter of seats on the Court had not been occupied in 2014, and one of its senates de facto ceased to exist. This dispute was settled, but new questions emerge. There remains a concern whether President Kiska was correct to appoint the judges he finally did because two out of his three appointments were selected by the National Council (NCSR) for the same vacancy. Had the CC considered this practical issue in the decision, the President could have benefited from the instruction to make an apt choice.

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Published on January 25, 2018
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Symposium on “The Slovak Constitutional Court Appointments Case”–Intermezzo to the Constitutional Conflict in Slovakia: A Case Critique

[Editor’s Note: This is the second of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here.]

—Simon Drugda, Centre for Socio-Legal Studies, University of Oxford

On December 6 the first Senate of the Slovak Constitutional Court (CC) held that President Andrej Kiska infringed rights of the CC candidates when he rejected them, again, for lack of interest in constitutional law, language skills, or no publication in the field in a reputable outlet (I. ÚS 575/2016).

The CC Appointments Case raised several realist concerns about our judges that have not been addressed yet. For, example, what level of constitutional literacy should we require of a CC judge?[1] Do deliberate, low-quality appointments to the Court trigger separation of powers concerns? Does the ill repute or lack of professional credentials of a single judge depreciate the whole Court? Is the vetting of nominees in the Constitutional Committee of the National Council (NaCo) thorough enough?[2] These questions are all mightily important but in the immediate context, not the right ones to ask.

It is necessary first to recognize the mistakes in the handling of the case. Only then we will be able to move past this controversy and focus on the quality of the future CC appointments. I present a case criticism of one procedural aspect of the I. Senate decision.

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Published on January 24, 2018
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