magnify

I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


Eman Muhammad Rashwan, Lecturer of Public Law, Cairo University, Egypt; Visiting Lecturer of Law, Hamburg University, Germany.


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

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

Developments in Constitutional Courts

  1. The Supreme Court of Canada has refused to hear an appeal from property developer Concord Pacific Acquisitions, ending a long-running legal dispute over the billion-dollar development of one of Vancouver’s last parcels of waterfront land.
  2. The German Federal Constitutional Court decided that the measles vaccination requirement for daycare children, among other things, remains in force.
  3. The Turkish Constitutional Court rules that employers cannot collect employee fingerprint data for surveillance purposes.
  4. Constitutional Court of Zambia confirmed the High Court at Ndola’s decision nullifying the election of Bowman Lusambo-the Appellant-as member of parliament for Kabushi Constituency on the ground that he had engaged in violence and other illegal acts or practices.
  5. The Turkish Constitutional Court annulled the Presidential Decree on establishing the Price Stability Committee of Jun 30, 2021.

In the News

  1. Jamal Khashoggi’s fiancée has filed an application with the Turkish Constitutional Court, demanding the cancellation of the transfer of the journalist’s case to Saudi Arabia.
  2. The American Civil Liberties Union, along with 12 ACLU state affiliates and represented by Cooley LLP, filed an amicus brief with the US Supreme Court on Aug 18, urging the court to uphold the constitutionality of the Indian Child Welfare Act.
  3. The US President Biden signed legislation to support law enforcement and expand benefits for survivors, including families of Jan 6 officers.
  4. Civil-rights groups have sent a letter to the US Department of Homeland Security, asking for an investigation of a sham university set up by the federal government to expose student visa fraud.
  5. Palestinian activists say Israel is behind a social media crackdown on activists, journalists, and news outlets whose social media accounts have been restricted following Israel’s three-day operation in the Gaza Strip.

 New Scholarship

  1. Richard Albert, Does the World Need an International Constitutional Court?, 3 Rutgers International Law and Human Rights Journal (forthcoming 2023) (exploring the modern origins of the proposal for an International Constitutional Court and suggesting how to design an International Constitutional Court for success–delivered as the Edward J. Bloustein Jurisprudence Lecture at Rutgers University on May 18, 2022)
  2. Murat C. Mungan, Erkmen G. Aslim, and Yijia Lu, Inmate Assistance Programs: Toward a Less Punitive and More Effective Criminal Justice System, George Mason Law & Economics Research Paper No. 22-32 (2022) (providing the first empirical analysis of IAPs’ general deterrence effects after explaining why these effects are likely to be insignificant under a more complete economic theory which accounts for knowledge hurdles; discounting of future outcomes; impulsive behavior; and loss aversion)
  3. Edoardo Celeste, Amélie Heldt, and Clara Iglesias Keller, Constitutionalising Social Media, Hart Publishing, Bloomsbury Academic (2022) (exploring to what extent constitutional principles are put under strain in the social media environment and bringing together a multi-disciplinary group of experts from law, political science, and communication studies to examine the challenges of constitutionalizing what today can be considered the modern public square. The book is available with a discount when ordering online at www.bloomsbury.com – use the code GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!)
  4. Mehmet Tag and Suleyman Degirmen, Economic Freedom and Foreign Direct Investment: Are They Related?, Economic Analysis and Policy, Vol. 73 (2022) (exploiting country-level data that spans 19 years of observations from 127 countries on the institutions of economic freedom to empirically examine the argument that economic institutions and policies that facilitate the efficient exercise of private property rights are instrumental in attracting higher levels of foreign direct investment)
  5. Yu-Jie Chen, “One China” Contention in China-Taiwan Relations: Law, Politics and Identity, The China Quarterly (Forthcoming 2022) (examining the abiding “One China” contention between the People’s Republic of China (PRC) and the Republic of China (ROC or Taiwan), focusing on their 2008–2016 cooperation and the ensuing political stalemate)
  6. Lydia Brashear Tiede, Judicial Vetoes: Decision-making on Mixed Selection Constitutional Courts, Cambridge University Press series on Comparative Constitutional Law and Policy (2022) (Using empirical evidence from the constitutional courts of Chile and Colombia, this book develops a framework for understanding the factors, external and internal to courts, which lead individual judges, as well as the courts in which they work, to veto a law)
  7. Stefan Griller, Lina Papadopoulou and Roman Puff, National Constitutions and EU Integration, Bloomsbury (2022) (exploring the relationship and tensions between the national Constitutions and the EU law in the different EU Member States)
  8. Martin Belov, Constitutional Semiotics: The Conceptual Foundations of a Constitutional Theory and Meta-Theory, Hart Publishing, Bloomsbury Academic (2022) (offering an outline of the foundations of a theory of constitutional semiotics. The book provides a systematic account of the concept of constitutional semiotics and its role in the representation and signification of meaning in the constitution, constitutional law, and constitutionalism. It is available with a discount when ordering online at www.bloomsbury.com – GLR A6AUK for UK orders and GLR A6AUS for US orders to get 20% off!)

Calls for Papers and Announcements

  1. The Centre for Indonesian Law, Islam and Society at Melbourne Law School invites applicants to the 18th Annual CILIS Islamic Studies Postgraduate Conference that will be held via Zoom on Tuesday, Nov 8, 2022.
  2. The Regular registration for the World Congress of Constitutional Law is closing on Wednesday, Aug 31, 2022, at midnight (UCT+2). The congress is to be held from 5 – 9 December 2022 at the University of Johannesburg in South Africa.
  3. The University Research Priority Program (URPP) Equality of Opportunity at the Faculty of Law of the University of Zurich announces the international conference “Contested Equality: International and Comparative Legal Perspectives.” The conference will take place at the University of Zurich, Switzerland, on Oct 20-21.
  4. The Department of Public Law at the Max Planck Institute for the Study of Crime, Security, and Law in Freiburg in Breisgau / Germany (Director: Professor Ralf Poscher) is seeking to recruit several Doctoral Researchers (f/m/div) at the earliest possible starting date.
  5. Loyola University Chicago School of Law’s Beazley Institute for Health Law & Policy is seeking candidates to fill its Beazley Chair in Health Law and Policy. The institute invites applications from full-time, tenured, lateral candidates specializing in health law and policy, with an appointment to commence in Fall 2023.

Elsewhere Online

  1. Sarah E. Yerkes, The End of the Tunisia Model: The Country’s Democracy Has Died—but May Yet Be Reborn, Foreign Policy
  2. Ankit Panda, South Korea’s “Decapitation” Strategy Against North Korea Has More Risks Than Benefits, Carnegie
  3. Martin Kwan, Modern slavery: Is Domestic Servitude a “Commercial Activity” Exempted from Diplomatic Immunity?, Oxford Human Rights Hub
  4. Leonid Sirota, The Good Government Trilemma, American Society of International Law
  5. Alicia Espinosa, Effective Congressional Oversight: Capacity, Best Practices, and Measurement, THE OVERSIGHT PROJECT
Print Friendly, PDF & Email
Published on August 23, 2022
Author:          Filed under: Developments
 

Convocatoria Tercer Número en Español: International Journal of Constitutional Law (ICON)

Tras el éxito de la convocatoria a los primeros números en español, el International Journal of Constitutional Law (ICON) tiene el agrado de anunciar que el segundo número en español se publicará en el volumen 20, número 4, de este año. Pronto tendremos más noticias sobre la publicación de este número.

Tenemos el placer de invitar a la comunidad académica hispanoparlante a enviar artículos originales para ser incluidos en el tercer número que ICON publicará completamente en español el año 2023.  

Los artículos serán publicados en el volumen 21, número 4, de ICON. Regirán las mismas formalidades y procedimientos que los números regulares de la revista. De esa manera, el número en español, al igual que los números en inglés, será incluido en la plataforma de Oxford University Press y los artículos aparecerán indexados en SCOPUS (primer cuartil) y WoS.

Los artículos deben ser originales (no se aceptarán traducciones de artículos previamente publicados en inglés o en otro idioma) y deben cumplir con los mismos requisitos, tanto formales como sustantivos, que aquellos exigidos para los artículos publicados en inglés. Entre otros, los artículos no deben superar las 14.000 palabras (incluyendo notas al pie de página) y no deben ser sometidos a la consideración de otras revistas de manera simultánea. Adicionalmente, todos los artículos deben incluir un título, palabras claves, y un resumen en inglés y en español. El resumen debe sintetizar el argumento central del artículo en no más de 300 palabras.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 22, 2022
Author:          Filed under: Editorials
 

The Kenyan Supreme Court Writes a New chapter in the History of the Rule of Law in Africa

Stephanie Rothenberger, Konrad Adenauer Stiftung Rule of Law Programme for Anglophone Sub-Saharan Africa

[Editors’ Note: This is the first post in a symposium on the Building Bridges Initiative (BBI) in Kenya, through which President Uhuru Kenyatta attempted to introduce the Constitution of Kenya (Amendment) Bill, 2020. Among the various reforms proposed therein, the bill introduced a new post of Prime Minister which, it has been speculated, is a role that President Kenyatta could seek should he lose the presidency. The bill was opposed on the basis of its constitutional validity and traversed the Kenyan courts, finally reaching the Supreme Court. A split bench of the Supreme Court held that the bill was irregular and unlawful because the constitutional requirement of public participation was not satisfied through the process of the bill’s introduction. This series seeks to provide a global perspective on the significance of the Kenyan Supreme Court’s judgment, and features contributions from legal experts and practitioners reflecting on the judgment and its implications for Kenya’s legal landscape. The symposium is being sponsored and organized jointly with the African Law Matters blog, and all posts will appear on both blogs.]

It is just before Easter, and I am in an Italian restaurant in the centre of Nairobi, sitting across from Willy Mutunga, a thoughtful man with a wealth of experience, calm, friendly eyes, and an alert gaze.

You can tell at once that Willy Mutunga has seen a great deal in his lifetime – a dedicated campaigner for democracy and justice who was a political dissident in the years of President Moi’s dictatorship and who was imprisoned back then, only to become, many years later, the first Chief Justice and President of the Supreme Court of Kenya under Kenya’s new Constitution of 2010.

Our conversation quickly turns to a topic which has been a recurring subject in my work for months, and which has dominated political debate in the country for almost three years. On 31 March 2022, the Supreme Court of Kenya delivered its eagerly awaited verdict on the controversial Building Bridges Initiative (BBI), one of Kenyan President Kenyatta’s most important political projects during his second term in office. 

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 20, 2022
Author:          Filed under: Analysis
 

What’s New in Public Law


Wilson Seraine da Silva Neto, Master Student at the University of Coimbra – Portugal; Postgraduate in Constitutional Law at the Brazilian Academy of Constitutional 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The U.K. Supreme Court will hold hearings in October on whether Scotland can call an independence referendum without the consent of the British government.
  2. South Korea’s Constitutional Court struck down a law that authorized mobile carriers to share personal data with law enforcement agencies without notifying the user, local media said.
  3. The South African Constitutional Court has dismissed Ace Magashule’s application to appeal his suspension as the ANC’s secretary-general.
  4. The American Bar Association passed a unanimous resolution opposing the so-called Insular Cases, a series of Supreme Court decisions that decreed limits to the rights of U.S. citizens in territories based largely on their race.
  5. The Portuguese Constitutional Court will decide whether mistreatment of animals constitutes a crime. In past cases, the justices considered that the prison sentence can only be applied in situations where constitutionally protected values ​​are violated, which would not be the case for animal welfare.
  6. The São Tomé Constitutional Court granted the request made by the president of the country’s parliament, allowing him to pay in installments a fine of 375,000 dobras (15,112 euros) for failing to render the accounts of the presidential campaign in 2021.

In the News

  1. Kiribati is in the midst of a constitutional crisis after its government detained one of its most senior judges, Australian citizen David Lambourne, after a failed attempt to deport him.
  2. Khoi and San people marched to the constitutional court to hand over a memorandum in which they demanded that their indigenous rights be recognized, equally applied and upheld in South Africa.
  3. Recently retired Supreme Court Justice Stephen Breyer has been named the honorary co-chair of the National Constitution Center’s board of trustees, where he joins Justice Neil Gorsuch, who has served in that position since 2019.
  4. Former members of Joe Biden’s commission on the Supreme Court say their work had value even though the president hasn’t yet backed any changes in the eight months since they submitted the final report.
  5. The Community of Madrid will present an appeal of unconstitutionality to the royal decree of the energy plan of the Government of Spain, considering that it is “putting into question the own competences” of the Community, specifically, those linked to trade.
  6. Prime Minister Prayut Chan-o-cha reiterated that the Constitutional Court of the Kingdom of Thailand will decide when he will reach the eight-year limit of his premiership.
  7. UNC and Harvard University’s affirmative action cases will no longer be heard together by the Supreme Court, per a 22 July 2022 order.

New Scholarship

  1. Allan McCay, Neurotechnology, law and the legal profession (2022) (sets out the: challenges and opportunities that developments in neurotechnology may bring for the profession, and the impact it may have on cognitive performance and the way lawyers work).
  2. Fábio Lopes Alfaia, Reserva do Possível e Discricionariedade Jurídica (2020) (analyzes the principle of reserve for contingencies as a structuring and conditioning legal norm for the interpretation and application of rules and principles of public law)
  3. Johannes Reich, Originalismus» als methodologischer Scheinriese und verfassungspolitische Konterrevolution (2022) (critical analyze on originalism as dominant methodology for interpreting the US Constitution)
  4. Joseph Cudjoe Awudja, Ronald Mensah, Adwoa Kwegyiriba, Agyemang Frimpong, Public Attitudes towards Death Penalty Provisions: Relevance of Ethico-Phenomenological Principles in the Operation of Articles 3 (3) & 19 (2) of the 1992 Republican Constitution of Ghana (2022) (the article recommends that the death penalty be abolished under the Ghana new constitution and replaced with life imprisonment without parole and that any amendment to abolish the death penalty be approved by a national referendum, as it involved an entrenched constitutional provision)
  5. Peter T. Muchlinski, Advanced Introduction to Business and Human Rights (2022) (this book charts the field of business and human rights, finding that corporate responsibility to respect human rights is gradually evolving into a binding legal duty in both national and international law)
  6. Juliano Zaiden Benvindo, The Rule of Law in Brazil (2022) (This book provides a broad perspective of the functioning, evolution, and dynamics of the rule of law in Brazil.)

Calls for Papers and Announcements

  1. The Global Summit on Constitutionalism is now accepting submissions for individual papers and fully-formed panels.
  2. The University of Coimbra Institute for Legal Research welcomes Papers to the The Colloquium/Workshop Migrations, human rights and citizenship which intends to analyze, discuss, and propose solutions on the impact of migration in different citizenship contexts, in today’s complex and heterogeneous societies. The Abstracts of 300 words (max.) should be submitted by 10 October 2022 to mhrc@ij.uc.pt.
  3. The University of Coimbra Institute for Legal Research launched an international competition for 3 post-doctoral fellowships, at the University of Coimbra Institute for Legal Research. Candidates must be highly motivated and qualified young researchers (maximum 3 years of PhD) from all social sciences, not just law. Knowledge of Portuguese is not a requirement if the person can express themselves in English as a working language.
  4. The International Journal of Law Management & Humanities invites Research papers, Articles, Short Notes, Book Reviews, Case Commentaries, and others contributions for its Volume V Issue IV. Submission Deadline for First Round: 20 August 2022.
  5. The Centre of Excellence for Environment and Forest Laws, ICFAI Law School, Hyderabad invites manuscripts for a book on Environment Law. The last date for submission of Chapters is 31 August 2022. Submissions are to be emailed at centexcellenvlaw@ifheindia.org.
  6. The Constitutional Research Institute of the Constitutional Court of Korea will hold its 11th International Symposium on 26 August on the theme “Global Constitutionalism and the System for the Protection of Global Human Rights.”

Elsewhere Online

  1. Richard Albert, Made To Be Broken: Richard Albert On The Difficulty Of Amending The U.S. Constitution, The Sun
  2. Samer Alnasir, Iraq Urgently Needs a Real Constitution, IACL-AIDC Blog
  3. Akhil Amar, Tackling Kennedy, America’s Constitution Podcast.
  4. Jesse Russell, A Legacy of Equal Justice, Law & Liberty
  5. Angie Gou, Ellena Erskine & James Romoser, Stat Pack for the Supreme Court’s 2021-22 Term, SCOTUSblog
Print Friendly, PDF & Email
Published on August 15, 2022
Author:          Filed under: Developments
 

Of Counting Votes, Televised Supreme Court Proceedings, and the Problematic Use of Constitutional Categories—a Rejoinder

Mariana Velasco-Rivera, National University of Ireland Maynooth, School of Law and Criminology; Co-Editor, IACL Blog. Twitter: @marisconsin.

[Editor’s Note: This is one of our ICONnect columns. For more on our 2022 columnists, see here.]

In my recent column ‘When Judges Threaten Constitutional Governance: Evidence from Mexico’, I discussed a Supreme Court high-profile case (Acción de Inconstitucionalidad 64/2021) in which the constitutionality of a set of amendments to the Ley de la Industria Eléctrica (LIE—electricity industry statute) was challenged. The amendments sought to roll back former President Peña Nieto’s energy policy (introduced as a constitutional amendment in 2013 to open the energy industry to the private sector). Among other things, the amendments to the LIE privilege the energy state-owned company (CFE) in the provision of basic energy services (regardless of price and source) and at the same time limits the role of clean energy companies in the market (art 4 § VI and 26).

As explained in my column, in short, the claimants (a group of forty-eight Senators) made two arguments of unconstitutionality. On the one hand, they argued that the provisions breached the constitutional right to a healthy environment (medio ambiente sano); and, on the other hand, that they violated constitutional antitrust and free-market principles (competencia económica). Six Justices agreed with both arguments. Two additional Justices also determined that the provisions were unconstitutional, but only agreed with one of the two arguments brought forward by the claimants. Justice Alfredo Gutiérrez Ortiz Mena considered the articles violated the right to a healthy environment while Justice Juan Luis González Alcántara considered that the articles were unconstitutional for violating the principles of antitrust and free market.

My previous column also explained that even though a total of eight justices determined that the articles were unconstitutional (therefore meeting the constitutional threshold to invalidate legislation), the provisions were not struck down. Why? Because instead of counting votes regardless of the reasons behind them (according to the usual practice), Chief Justice Arturo Zaldívar inexplicably claimed that in order to strike down legislation in abstract review the constitution required that the reasons to cast a vote for the unconstitutionality of a given article should be the same (see page 119 of the session transcript ). In other words, the rule to count votes in order to invalidate legislation was modified. I considered that such a situation set a dangerous precedent in terms of constitutional governance for going against well-established procedural rules, and because, should this become the norm, it would weaken the mechanism of abstract judicial review as a checking mechanism by effectively making it more difficult to invalidate legislation.

Dr. Roberto Niembro wrote a response to my column where he claims that I omitted relevant facts that would prevent the reader from seeing the whole picture. In essence, he claims that what actually happened is that a “collective doubt” about how to count votes in order to invalidate legislation arose during the session which, in turn, was solved when Justice González Alcántara said “[m]y vote here is for the validity” (i.e. he switched his vote from invalidating the provisions in question to validating them) (see page 123 of the transcript). Dr. Niembro then turns to argue that the issue we should be questioning is the fact that Supreme Court deliberations in Mexico are televised. Finally, he argues that by asking whether the case I described could be understood as abusive judicial review, I engage in a “problematic use of constitutional categories which are intended to denounce other types of phenomena.”

In what follows I refute Dr. Niembro’s “collective doubt” account and show that the eight-vote threshold to invalidate was in fact met, address his point about the broadcast of live Supreme Court proceedings, and respond to his objections about what he considers a problematic use of constitutional categories.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 11, 2022
Author:          Filed under: Developments
 

The War Hostages: Does the Ban for Men to Travel Abroad Violate Ukraine’s National law and International Obligations?

Sergiy Panasyuk, Professor, Department of General Studies of the Ukrainian-American Concordia University and Department of law of the European University, Kyiv, Ukraine

After the full-scale Russian military invasion of Ukrainian territories, the President of Ukraine announced martial law and military mobilization, which were adopted by the Ukrainian Parliament and have been prolonged until August 23, 2022, and most likely will be extended until the end of the war. To avoid a lack of soldiers in the Ukrainian army and obligations to protect the country, the Ukrainian government banned the passing out of the country for almost all men from 18 to 60 was forbidden. Such a decision was also adopted because of the old soviet standards about men’s and women’s roles in society. Despite the Ukrainian Constitution being gender-neutral in this case, people can’t allow even the thought that women (with a few exceptions) can fight in war equally with men. We do not call all women to fight and die, but the restrictions about crossing the border were also because of logic that only men have to fight for Motherland because it is only their duty.

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 10, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


—Irina Criveț, PhD Candidate in Public Law, Koç 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa has ruled that foreign nationals cannot be enrolled as legal practitioners in South Africa unless they are permanent residents in South Africa.
  2. The UK Supreme Court decided against the UN Committee on the Rights of Persons with Disabilities in the Archie Battersbee case involving the removal of life support.
  3. Malaysia’s Appeal Court has overturned a landmark decision that women should be able to pass on their citizenship to children born overseas just as Malaysian men.
  4. The Federal Court of Malaysia has ruled that Penang’s anti-party hopping enactment is constitutional and that the Article 14A of the Penang State Constitution is consistent with Article 10(1)(c) of the Federal Constitution.
  5. Constitutional Court of Korea will decide whether enforcing a compulsory minimum wage on employers at 9,620 won (US$7.38) violates their freedom of contract and business.

In the News

  1. The Pietermaritzburg High Court postponed the corruption case against Jacob Zuma until mid-October.
  2. A US federal judge sentenced a former militia member to 87 months in prison for leading a mob of rioters and carrying a handgun on the January 6th Capitol riot.
  3. The European Court of Human Rights rejected Archie Battersbee’s family’s request to keep their child on artificial life-support. Instead, it held that it would “not interfere with the decisions of the national courts to allow the withdrawal of life-sustaining treatment from [Battersbee] to proceed.”
  4. Kuwait’s Crown Prince Sheikh Meshal al-Ahmad Al Sabah has issued a decree dissolving the parliament. Elections are expected to take place within two months.
  5. The Parliament of India has passed a bill to ban funding weapons of mass destruction.

New Scholarship

  1. Maria Salvatrice Randazzo(2022), Constitutionalism of Australian First Nations: A Comparative Study, Routledge (examines Australian First Nations constitutionalism by focusing on Warlpiri, Yolngu, and Pintupi legal orders to identify similarities between these constitutional traditions)
  2. Fiona Ey (2022), Guardians of the Constitution: Upholding Judicial Independence During Samoa’s Constitutional Crisis, The Journal of Pacific History (assesses Samoa’s constitutional court’s role in solving 2021 political and judicial crisis)
  3. Adél Köblös (2022), ECtHR Judgements in the Decisions of the Hungarian Constitutional Court, (explores the influence of the ECtHR on the case law of the Hungarian Constitutional Court based on the analysis of thirty selected decisions)
  4. Joe Boesten (2022), Constitutional Origin and Norm Creation in Colombia: Discursive Institutionalism and the Empowerment of the Constitutional Court, Routledge (analyses ‘why and how the Constitutional Court has increased its legal power through curtailing constitutional reform in 2010—and outlines the significance of this question for institutional theory’)
  5. G. de Ghantuz Gubbe (2022), Populism, Constitutions, Constitutional Courts, and Constitutional Democracy, Palgrave Macmillan (takes a different methodological approach to explore ‘the analytical contraposition between populism and constitutionalism’)

Calls for Papers and Announcements

  1. The Connecticut Law Review calls for submissions to the climate and environmental justice symposium titled “Climate and Environmental Justice in the 21st Century: A Just Transition”. The DL for proposal submission is September 1st, 2022.
  2. Annual Professor John R. Nolon Student Writing Competition invites law students to write entries on Environmental Constitutionalism. The DL for submissions is August 15th, 2022.
  3. Northumbria University’s Family Justice Research Interest Group will organise theGender Based Violence Conference: Reflections On The World Envisaged In “After Dark” by Jayne Cowie’ and is seeking submissions on issues concerning the theme of the conference, including academia, legal practice, the police and other professionals from the criminal justice sector, and the charitable sector, including domestic abuse support services. The DL for abstract submission is Friday, September 9th, 2022.
  4. The Irish Jurisprudence Society invites proposals to society’s Workshops 2022-23 on legal philosophy by Monday, August 22nd, 2022.
  5. The KTH Royal Institute of Technology in Stockholm invites researchers from all over the world to the online ‘Workshop Exploring Low-Flying Academia’ that will take place on September, 14th, 2022. The workshop is supported by the research project ‘Decreased CO2-emissions in flight-intensive organisations’.

Elsewhere Online

  1. Gautam Bhatia, ICLP Turns 9 The Leap of Faith, Indian Constitutional Law and Philosophy
  2. Tanmay Singh and Amala Dasarathi, Challenging Censorship, Verfassungsblog
  3. Leandro Mancano, Everything Must Remain the Same for Everything can Change,  Verfassungsblog
  4. Raphael Oidtmann, Fighting on the Business Front, Verfassungsblog
  5. Ayesha Wijayalat, Sri Lanka in a Constituent Moment, IACL-AIDC Blog
  6. Robyn Powell, Achieving Disability Justice After Dobbs, Oxford Human Rights Hub
  7. Danielle Pullan, Is the EU any More Progressive on Abortion Policy than post-Roe’s America?, The Loop ECPR’s Political Science Blog
  8. Sukarm Sharma and Siddhant Pengoriya, A Constitutional Appraisal of Non-Violent Disruptive Protests, The Leaflet
Print Friendly, PDF & Email
Published on August 8, 2022
Author:          Filed under: Developments
 

Constitutional Law Should Know Better: Society and Lucky Contingencies in Brazil’s Awakening Democracy

Juliano Zaiden Benvindo, Associate Professor at University of Brasília and CAPES/Humboldt Senior Fellow at the Max-Planck Institute for Comparative Public Law and International Law

“PEC Kamikaze”, “PEC of Despair” or “PEC of the Coup” – This is how a recently approved proposal for constitutional amendment (Proposta de Emenda à Constituição – PEC, in Portuguese) has been dubbed as the potentially last resource for President Jair Bolsonaro to gain some votes for the presidential election in Brazil in October. The amendment establishes the so-called “state of emergency”, which would authorize the government to raise public spending and create new social benefits despite electoral and fiscal rules prohibiting them within the electoral year. As a strategy of serious economic consequences whose electoral goals are not hidden – it includes a sunset clause with an expiration date of December 31st, 2022 – such an amendment is the upmost expression of how constitutional erosion in the country has reached new highs. It shows that not only has Congress sided with Bolsonaro in his autocratic goals, but also that the Supreme Court has grown increasingly timid as threats against it have intensified.

Lucky contingencies matter, though. Despite all efforts and attacks on Brazil’s rule of law, the fact that Bolsonaro is being challenged by the very popular former President Lula da Silva may explain why Brazilians, according to the current polls, are likely to get rid of Bolsonaro in the coming elections. It is certainly a relief, but it also speaks volumes about the difficulty of constitutional and institutional means to provide themselves effective mechanisms to fend off would-be autocrats such as Bolsonaro. In the end, Brazil may overcome such a nightmare and tragedy, but perhaps only because there is a politician who is strong enough to beat him and a society that is finally awakening for reaction, not because institutions are working properly to protect Brazil’s democracy. Such a dysfunctional response begs the question of how institutions and society will react in the pretty likely scenario of Bolsonaro not conceding his defeat and even plotting a coup against Brazilian democracy. Where is constitutional law failing in such cases?

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 5, 2022
Author:          Filed under: Developments
 

On the Legacy of Justice Scalia in Dobbs: The Lack of Comparative Analysis

–Stefanus Hendrianto, Pontifical Gregorian University

Much has been and will be written about Dobbs v. Jackson Women’s Health Organization, the decision by the Supreme Court of the United States which held that the Constitution of the United States does not confer a right to abortion, and which overruled both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). Most of the public discussion points out that Dobbs will be “the enduring legacies” of several different people, including President Donald J. Trump (for his nomination of three conservative Justices) and Chief Justice John Roberts (for losing control of his Court). But Dobbs will also be “the enduring legacy” of the late Justice Antonin Scalia because of the lack of comparative analysis in the Court’s opinion.

Revisiting Justice Scalia’s view on Abortion and Comparative Law

For many, the late Justice Scalia was known for his opposition to the practice of citing comparative norms.[1] But his view on comparative law was more nuanced. He did not simply warn about the danger of the practice of citing foreign cases; instead, he was critical of the ideological convergence in the comparative constitutional realm. Scalia’s main concerns about the universal law of human rights related to moral questions such as the right to abortion, right to assisted suicide, right to same-sex marriage, etc.[2]  The bottom line is that Justice Scalia believed that the universal law of human rights had become an ideological project to define right and wrong.

As comparative law inquiry is closely intertwined with the universal law of human rights, Scalia then moved to attack the “cherry picking” approach because comparative theorists and judges would always have their own ideological biases, with their adherence to the universal law of human rights. In Scalia’s view, “if you are a living constitutionalist, you are almost certainly an international living constitutionalist.”[3]

Read the rest of this entry…
Print Friendly, PDF & Email
Published on August 3, 2022
Author:          Filed under: Developments
 

What’s New in Public Law


Claudia Marchese, Research Fellow in Comparative Public Law at the University of Sassari (Italy)


In this weekly feature, I-CONnect publishes a curated reading list of developments in public law. “Developments” may include a selection of links to news, high court decisions, new or recent scholarly books and articles, and blog posts from around the public law blogosphere. To submit relevant developments for our weekly feature on “What’s New in Public Law,” please email iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Constitutional Court of Slovenia has legalized same-sex marriage and adoption by homosexual couples. The highest Slovenian authority declared that the distinction between heterosexual and homosexual couples resulted in discrimination, which is incompatible with the Slovenian Constitution.
  2. On 30 June 2022, the United States Supreme Court handed down its opinion in West Virginia v. Environmental Protection Agency, holding by a 6-3 majority that the U.S. Environmental Protection Agency overstepped its statutory authority during the Obama Administration in adopting the Clean Power Plan, a regulation to reduce greenhouse gas and other emissions from existing power plants. 
  3. The Superior Court of Justice of Catalonia brought an appeal before the Constitutional Court against the new law on the use of languages ​​in schools and the linguistic projects approved by the Parliament of Catalonia, which prevent the application of its sentence that forced that 25% of the classes were in Spanish.
  4. The Spanish Constitutional Court has for the first-time recognized gender identity as a fundamental right protected by the Constitution, for which reason the Court has declared illegal any type of discrimination based on this cause.
  5. The Constitutional Court of Turkey ruled that a school’s refusal to exempt a pupil from religious classes violated the rights to religious freedom of the pupil and her parents.

In the News

  1. After the referendum’s vote in favour of the new Constitution, the President of Tunisia received the head of the government to discuss the organization of the upcoming Parliamentary elections and those of the Regional Assembly and territories.
  2. On 25 July 2022, U.S. Democrats introduced a bill to establish term limits for Supreme Court justices. The legislation would allow a new justice to take the bench every two years and spend 18 years in active service.
  3. On 21 July 2022, Italian Prime Minister Mario Draghi resigned. The government remains in office only to handle current affairs.
  4. The lower house of the Spanish Parliament approved with 187 votes in favor, 152 against and 7 abstentions a reform of the law concerning judicial power that unlocks the renewal of four Constitutional justices.
  5. On 26 July 2022 EU energy ministers reached a political agreement on a voluntary reduction of natural gas demand by 15% for this winter. The purpose of this Council regulation is to save gas to prepare for possible disruptions of gas supplies from Russia.

New Scholarship

  1. Rosalind Dixon, Tom Ginsburg, Adem Abebe (eds.), Comparative Constitutional Law in Africa (forthcoming 2022) (exploring the rich diversity of African constitutional law).
  2. Charles M. Fombad, Nico Steytler (eds.), Constitutionalism and the Economy in Africa (forthcoming 2022) (examining the relationship between the quest for constitutionalism in Africa and economic growth).
  3. Michel Rosenfeld, A Pluralist Theory of Constitutional Justice: Assessing Liberal Democracy in Times of Rising Populism and Illiberalism (2022) (providing a systematic account of the central role of distributive justice in the normative legitimation of liberal constitutions).
  4. Gabriel L. Negretto (ed.), Redrafting Constitutions in Democratic Regimes: Theoretical and Comparative Perspectives (2022) (examining and conceptually developing the relationship between representative and participatory channels of citizen involvement in democratic constitutional rewrites).
  5. Ranieri L. Resende, Impeachment: A Mechanism between Political Accountability and Legal Responsibility? Common Law Sources and the Brazilian Originalist Model, Global Journal of Comparative Law 11, 2 (2022) (analysing the legal-political nature of the Brazilian originalist model of impeachment).

Calls for Papers and Announcements

  1. The Global Summit on Constitutionalism is now accepting submissions for individual papers and fully-formed panels.
  2. Constitutional Studies is seeking submissions for an issue devoted to the topic “Slavery and Constitution Making.” The journal is particularly interested in submissions discussing cases from the Global South (other than Brazil), Europe, and the Islamic World. Submissions are requested by end of August 2022.
  3. The young comparatists of the Italian Association of Comparative Law propose a call for abstracts for the event “The Adjectives of Justice” that will be held at Sapienza, University of Rome, on 2-3 February 2023. The call for abstracts is aimed at young researchers who are interested in developing a discussion that adopts the tools of legal comparison to investigate the multiple dimensions of the concept of justice. Interested scholars shall submit an abstract of about 750 words (in Italian or English) with a short bibliography by 10 September 2022.
  4. The Faculty of Law of the Manipal University, in collaboration with Ranka Public Charitable trust, is organizing 8th edition of Manipal Ranka International Moot Court Competition on Arbitration Law. The competition is open to students pursuing a five-year or three-year LLB programme from a recognised University or Institute. The teams who want to participate in the competition are required to register by 20 August 2022.
  5. The Fifth Worldwide Congress of the World Society of Mixed Jurisdiction Jurists will be held on 14-16 June 2023 in Malta. The theme of the Congress is “Mixity in the Private and/or Public Law”. Proposals should be submitted by 15 October 2022.

Elsewhere Online

  1. Aleksandra Kuczerawy, Lidia Dutkiewicz, Accessing Information about Abortion. The Role of Online Platforms Under the EU Digital Services Act, Verfassungsblog.
  2. Diego Werneck Arguelhes, Weak, but (very) Dangerous. The Bolsonaro Paradox, Verfassungsblog.
  3. Aristi Volou,  When National Laws and Human Rights Standards Are at Odds, Verfassungsblog.
  4. Derrick Wyatt, A majority vote in two referendums? Putting off Indyref2 should not delay a UK rethink on how to handle the issue of Scottish independence, LSE blog.
  5. Aakanksha Saxena, Notes from a Foreign Field: The US Supreme Court’s Abortion Judgment in Dobbs v Jackson, Indian Constitutional Law and Philosophy.
  6. Theunis Roux, What does the US Supreme Court’s decision in Dobbs tell us about the virtues of Australia’s approach to protecting fundamental rights?, AUSPUBLAW.
  7. David Super, Functioning with a Short-Handed Senate, Balkinization.
  8. Joseph Geng Akech, To whom it may concern: South Sudan may not be ready for elections, yet democracy cannot wait, AfricLaw.
Print Friendly, PDF & Email
Published on August 1, 2022
Author:          Filed under: Developments