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I·CONnect

Blog of the International Journal of Constitutional Law

Announcement: Roundtable on the Brexit Deal

The Jean Monnet Center for International and Regional Economic Law & Justice in collaboration with EJIL and ICON cordially invites you to attend “The Brexit Deal: A Less Perfect Union or a More Flexible Compact? Assessing the Draft EU UK Trade and Cooperation Agreement” – A Roundtable (by Zoom) on January 14, 2021 at 9.30-11.30 EST; 14.30-16.30 GMT; 15.30-17.30 CET:  

The product of tumultuous political bargaining & intricate legal drafting, the EU-UK Trade and Cooperation Agreement, agreed in principle at the end of 2020, aspires to chart a new course for the EU-UK relationship in the wake of Brexit, with implications for vast areas of policy-making.  The Agreement will be intensely debated and analysed in the weeks ahead.  In this roundtable a diverse interdisciplinary group of experts and scholars give their first reflections with a view to assessing the Agreement.   Fields discussed will include the law and economics of trade in goods, state aids, regulation and standards, energy and climate, the Ireland dimension, and the relationship of the Agreement to the WTO and other aspects of the parties’ external economic policies.     

Participants include:

Gráinne de Búrca, Jean Monnet Center, NYU Law School (Introduction) 

Joseph Weiler, Jean Monnet Center, NYU Law School (Moderator)

Meredith Crowley, Department of Economics, Cambridge University

Robert Howse, NYU School of Law  

Imelda Maher, Dean of Law, University College Dublin 

Daniel Sarmiento, Editor-in-Chief, EU Law Live & Professor, Complutense University, Madrid

Jesse Scott, International Director, Agora Energiewende (Berlin), lecturer Hertie School of Governance

Thomas Streinz, Executive Director of Guarini Institute for Global Law & Tech, NYU School of Law

Registration required. Please click here to REGISTER or copy-paste this link in your browser: https://tinyurl.com/y8ju4n5b   Upon registration, you will receive an email containing zoom details information.

With the warmest wishes,

The Jean Monnet Centre, NYU School of Law

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Published on January 3, 2021
Author:          Filed under: Editorials
 

What’s New in Public Law

–Swapnil Tripathi, Attorney, India

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 Austrian Constitutional Court found the headscarf ban in elementary schools as unconstitutional.
  2. The Austrian Constitutional Court held that government measures mandating mask-wearing and splitting classes into two halves were illegal.
  3. The Indian Supreme Court rejected a challenge to the seats reserved for the Scheduled Caste members in the Panchayat elections.
  4. The Kosovo Constitutional Court found the election of the Centre’s coalition government to be unconstitutional.
  5. The Romania Constitutional Court struck down a legislative amendment that banned gender studies in university education.

In the News

  1. Altin Binaj was sworn in as the fifth member of the Constitutional Court of Albania.
  2. Hungary amended its Constitution to effectively ban same-sex couples’ adoption and define a family according to traditional Christian views of marriage, family, and gender.
  3. Minnesota town approved a permit for whites only church.
  4. Prime Minister of Nepal called for fresh elections.
  5. Parliament of Somalia passed a constitutional amendment, extending the presidential term from four to five years.

New Scholarship

  1. David Levine, Should the power of presidential power be revised?, The Judges’ Book (arguing that the abuse of presidential pardoning power can be checked through a constitutional amendment that requires the co-signature of the Speaker of the House of Representative with every pardon)
  2. Jie Huang, Applicable Law to Transnational Personal Data: Trends and Dynamics, German Law Journal (discussing the lack of a law governing transnational personal data amongst nations and argues for achieving regional coordination between states to achieve personal data protection)
  3. Mark Tushnet, Amending the Constitution in Taking Back the Constitution: Activist Judges and the Next Age of American Law (arguing in favour of the possibility of amending the United States Constitution outside of Article V, using the tool of popular sovereignty)
  4. Michael D. Breidenbach and Owen Anderson (eds), The Cambridge Companion to the First Amendment and Religious Liberty (examining the general topic of religious freedom focusing on philosophical foundations, historical interpretations and interplay between law, politics and economics)
  5. Tarunabh Khaitan, The Indian Supreme Court’s identity crisis: a constitutional court or a court of appeals?, Indian Law Review (empirically examining the decision making of the Indian Supreme Court and arguing that its expansive docket has hampered its role as an effective Constitutional Court)

Calls for Papers and Announcements

  1. The Contemporary Central and East European Law Journal published by the Institute of Law Studies of the Polish Academy of Sciences, invites submission for its 2nd volume. The deadline for the submission is 15 March 2021.
  2. The Indian Journal of Constitutional Law published by the NALSAR University of Law, invites submissions for its 10th volume. The deadline for submission is 17 January 2021.
  3. The Journal of Legal Studies published by the National Law University, Delhi (India) invites submissions for its 3rd volume. The deadline for submissions is 10 January 2021.
  4. The Sixth Annual Constitutional Law Scholars Forum (American Constitution Society of Law and Policy, Barry University Dwayne O. Andreas School of Law ACS Student Chapter & Law Review, and Texas A&M University of Law) invites proposals on any topic of constitutional law. The deadline for submission is 12 January 2021.
  5. The University of Michigan Law School is inviting submissions for its 7th Annual Junior Scholars Conference. The deadline for submission is 4 January 2021.

Elsewhere Online

  1. Swapnil Tripathi, Gender and the Supreme Court of India, Live Law
  2. Sufyan Droubi, Marques Osorio and Luiz Eloy, The Brazilian Federal Supreme Court comes to the protection of indigenous people’s right to health in the face of Covid-19, EJIL Talk!
  3. Ian Millheiser, The Supreme Court’s confusing new “religious liberty” order, explained, Vox
  4. Jan Wolf, Explainer: Can anything stop Trump from pardoning his family or even himself?, KFGO
  5. Stephen Wermiel, On the Supreme Court’s shadow docket, the steady volume of pandemic cases continues, SCOTUS Blog
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Published on December 28, 2020
Author:          Filed under: Developments
 

Book Review: Sabrina Ragone on “An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU” (Hoai-Thu Nguyen)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Sabrina Ragone reviews Hoai-Thu Nguyen’s book on An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU (Eleven Publishing, 2018).]

—Sabrina Ragone, Associate Professor of Comparative Public Law, University of Bologna.

The volume An Uneven Balance? A Legal Analysis of Power Asymmetries between National Parliaments in the EU (Eleven, 2018), by Hoai-Thu Nguyen reads the evolution of parliamentary involvement within the EU through the lens of the financial crisis, showing to what extent asymmetry among parliaments shall be considered as a keystone to analyze the topic. In this regard, she focuses on the implications on representative democracy, which embodies the main conceptual point of reference of the examination (p. 11 ff.), as she claims that the financial and monetary crisis carried a democratic dimension (p. 1).

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Published on December 24, 2020
Author:          Filed under: Reviews
 
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The Curious Conservatism of Constitutional Amendment Politics in the United States

—Andrea Scoseria Katz, Washington University in St. Louis School of Law

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

A few days ago, an email popped into my inbox. It was a very typical email, the kind you delete dozens of every day: a watchdog group was soliciting money to fight back against “extremist” attacks on the Constitution. (However true the point about the U.S.’s constitutional health, this kind of language—plus the usual deluge of such emails—tends to stultify you after a while.) What did catch my attention, however, was the subject line: “The threat of an Article V Convention.”

The United States constitution is famously difficult to change.[1] Its amendment rule, found in the fifth article of the text, requires the assent of two-thirds of each legislative house plus three-fourths of the legislatures of the fifty states.[2] These demanding supermajorities are compounded by an amendment culture that tends strongly toward conservatism.[3] As early as 1862, a critic faulted Article V, not only for failing to stop the Civil War but also for quashing the spirit of American democracy: “Perhaps it may turn out that the article, instead of an instrument, as was intended, is an iron fetter, that must be broke, before free action can be attained.”[4]

All of which lends, in 2020, a certain irony to the warnings about constitutional revision sent to me by CommonCause, a progressive activist group whose own website loudly touts the fruit of its campaigning this year: “DEMOCRACY PREVAILS.” Democracy did, presumably, prevail in America in 2020 (notwithstanding the terrifying spectacle of an incumbent American president challenging the results of a free and fair election). But why does the thought of opening up the U.S. Constitution to stiffer currents of democracy elicit such panic in the left?

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Published on December 23, 2020
Author:          Filed under: Analysis
 
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What’s New in Public Law

–Pedro Arcain Riccetto, Postdoctoral Fellow at the University of Oxford.

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 US Supreme Court rejected Texas-led case to overturn Joe Biden’s victory in the presidential elections held last month.
  2. The Austrian Constitutional Court ruled that a law banning girls aged up to 10 years from wearing headscarves in schools is discriminatory.
  3. The Supreme Court of Brazil authorized the use of restrictive measures against citizens refusing to take COVID-19 vaccines.
  4. The US Supreme Court dismissed a challenge to leave undocumented immigrants out of the final census count.
  5. The Romanian Constitutional Court annulled a law banning gender studies in all arms of the country’s educational system.

In the News

  1. Ukrainian President Volodymyr Zelensky says global judicial reform will start from next year.
  2. Nepal’s President dissolves Parliament at the request of Prime Minister Sharma Oli’s cabinet and announced that general elections would be held in April and May 2021.
  3. Albania’s Justice Appointment Council sends a list of three Constitutional Court candidates for selection by the Parliament.
  4. The Court of Justice of the European Union rules Hungary’s asylum policies unlawful.
  5. In Sudan, thousands protest demanding acceleration of political reforms on the second anniversary of the uprising that ousted Omar al-Bashir.

New Scholarship

  1. Tom Ginsburg and Aziz Z. Hug (eds.) From Parchment to Practice: Implementing New Constitutions (2020). Cambridge University Press (analyzing the variable nature of conflicts that arise when a new constitution is adopted and the diverse means through they are mediated, whether successfully or not)
  2. Mark A. Lemley, Chief Justice Webster (2020) American Journal of International Law (forthcoming), Working Paper (discussing a historical test case for the use of dictionaries to interpret legal documents)
  3. Sandra Botero, Trust in Colombia’s Justicia Especial Para la Paz: Experimental Evidence (2020) Journal of Politics in Latin America (relying on experimental methods to explore whether features of the case and ruling party play a role in citizens’ attitudes towards Justicia Especial Para la Paz, Colombia’s transitional justice tribunal)
  4. Daniel Esty, Laurent Fabius, and Douglas Kysar, Courts, Climate Change, and the Global Pact for the Environment (2020). Working Paper, Global Constitutionalism Seminar at Yale Law School (debating what role courts play and what remedies they could or should provide in response to climate change)
  5. Yanilda Gonzalez, Authoritarian Police in Democracy: Contested Security in Latin America (2020). Cambridge University Press (examining the persistence of authoritarian policing in Latin America to explain why police violence and malfeasance remain pervasive decades after democratization)
  6. Armin von Bogdandy and others, German Legal Hegemony? (2020) Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2020-43 (discussing whether or not German legal hegemony is a matter of concern in contemporary EU law and, if so, what can be done about it)
  7. Jeffrey Pojanowski, Reevaluating Legal Theory (forthcoming 2021). Yale Law Journal (developing and rendering explicit a social theory for jurisprudence that takes both dimensions of law’s moral life and factual existence seriously)
  8. Zoe Robinson, Patrick Leslie, Jill Sheppard, Judicial Ideology in the Absence of Rights: Evidence from Australia (2020). Working Paper (investigating whether apex court judges behave ideologically in cases not involving civil, political, or economic rights).

Calls for Papers and Announcements

  1. The Global Summit, hosted by the International Forum on the Future of Constitutionalism and sponsored by the Constitutional Studies Program at the University of Texas Austin, invites all to register for its online sessions that will be held over five days from January 16 to 21, 2021. The event is structured around 12 Plenary Lectures, 100 concurrent sessions, and three special prize presentations, and offers an opportunity for scholars of all ranks around the world to exchange ideas on constitutionalism.
  2. The Supreme Court of Brazil invites all to read its Case Law Compilation on COVID-19, a publication that selected, summarized, and translated into English recent decisions the Court has rendered until October 2020 addressing the COVID-19 pandemic.
  3. The OECD Public Governance Directorate organizes the webinar “Trust, Institutions and Resilience: Opportunities for recovery”, to be held on 19 January 2021. The webinar will explore the dynamics of public trust, its causes, how it facilitates and hinders policy responses during the COVID-19 pandemic, and the likely effects of government’s responses on people’s confidence and compliance with policies. The event is open to the public, but pre-registration is required.
  4. The IACL-AIDC Virtual Roundtable “Democracy 2020: Assessing Constitutional Decay, Breakdown and Renewal Worldwide”, held from 18 to 26 November 2020, launched the Conference e-book and Webinar recordings online. Access the materials here.
  5. The Latin American Centre at the University of Oxford offers part and full scholarships to attract students who would not otherwise be able to take the Msc or MPhil courses in Latin American Studies. Applications may be submitted by 22 January 2021.

Elsewhere Online

  1. Peter Nielse, Constituent Power: A symposium – Introduction, Verfassungsblog.
  2. Nicholas Reed Langen, Reforming the Supreme Court, UK Constitutional Law Association Blog.
  3. Swati Jhaveri, The Coming Age of Constitutional Judicial Review in Singapore: The Advent of “Proportionality”?, IACL-AIDC Blog.
  4. Eric Posner, America Passed the Trump Stress Test, Project Syndicate.
  5. Sarath Sanga and David Schwartz, Tear Down this Judicial Paywall, WSJ Opinion.
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Published on December 21, 2020
Author:          Filed under: Developments
 

Slovakia on its way to Illiberal Democracy: Nullifying the Power of the Constitutional Court to Review Constitutional Amendments

–Tomáš Ľalík, Associate Professor, Department of Constitutional Law, Comenius University, Bratislava

On January 30, 2019, the Slovak Constitutional Court (“SCC”) passed its landmark judgment PL. ÚS 21/2014 in which it annulled a part of the constitution. With the constitution silent on the issue, the SCC claimed the power to review constitutional amendments. In the reasoning it adopted the basic structure doctrine developed by the Indian Supreme Court with additional features. On December 9, 2020 the parliament adopted a constitutional amendment banning explicitly the SCC from reviewing the amendments.

This short piece deals with some pitfalls of the amendment in respect of the court’s asserted power. As I try to sketch below, given a great flexibility of the Slovak Constitution, the passing of the amendment in question has made the parliament an unbound constitutional-maker that is neither in line with constitutionalism nor with democracy. Aside from that, the amendment represent a sharp regress in terms of rigidity of the constitution when compared to status quo.n

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Published on December 18, 2020
Author:          Filed under: Developments
 

Book Review: Orlando Scarcello on “Populism and Democracy” (Sascha Hardt, Aalt Willem Heringa and Hoai-Thu Nguyen, eds.)

[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Orlando Scarcello reviews Sascha Hardt, Aalt Willem Heringa and Hoai-Thu Nguyen’s book on Populism and Democracy (Eleven Publishing, 2020).]

—Orlando Scarcello, Postdoctoral Researcher in Public law, LUISS Guido Carli, Rome.

What is populism and what does it have to do with democracy? Questions of this kind are more and more common these days. Unprecedented political movements have risen in the West and beyond in the last decade, characterized by an ambiguous relation with democracy. While on the one hand they often recall a direct connection to “the people” as a source of political legitimacy, on the other distrust towards the constitutional liberal-democratic status quo has been repeatedly shown by the so-called “populist” movements. What are they then? The guardians of a new kind of democracy for the XXI century or an extremely dangerous threat, a corruption of democracy as experienced in post-WWII constitutionalism?

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Published on December 17, 2020
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10 Good Reads

—J. H. H. Weiler, New York University School of Law; Co-Editor-in-Chief, I·CON

This has been an unusual year (and that must be the euphemism of the year). I have not been to my office since February and have had no access to the pile of new books and the even greater pile of older books waiting to be read. There is, however, also a silver lining (there always is, isn’t there?), at least in this case for those without COVID-exacerbated care responsibilities, and with the privilege of adequate time and resources. Though most of my law books and books about the law are kept in my library-within-the Library at NYU Law School, some migrate home with my noble intentions of reading them there but are then forgotten, forlorn, on the shelves. This unusual year has offered redemption to a great many of them. 

I want to remind my readers that the criterion for selection is not “good books” but “good reads” where the pleasure factor predominates. There are many excellent law books that one does not associate with the almost sensuous “pleasure” associated with reading, say, a good novel—the tactile feel of the pages, the aroma of books, both new and old, the snuggly feeling of being curled up on the sofa with a novel or poetry book, and the supreme pleasure of forgetting about the office and note taking and law …

 One “innovation” in this year’s list is a recommendation of a children’s book, though of the genre that adults will enjoy no less, or perhaps even more, than their children.

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Published on December 15, 2020
Author:          Filed under: Editorials
 

Dicey After Brexit: Mini-Maximalism at the United Kingdom Supreme Court

—Yvonne Tew, Georgetown University Law Center[1]

[Editor’s note: This is one of our biweekly I-CONnect columns. For more information about our four columnists for 2020, please click here.]

On December 1, 2020, the United Kingdom Government published draft legislation to repeal the Fixed-term Parliaments Act 2011, which would revive the prerogative power to dissolve Parliament.[2] The Prime Minister would acquire the power to call general elections at will at any point during the parliamentary term. That power would be unchecked by the courts: the Bill specifically provides that the courts cannot question the exercise of that prerogative power.[3] And so Boris Johnson’s government fired its latest shot in an ongoing battle over where power should lie in Britain’s constitutional governance.[4]

When Boris Johnson replaced Theresa May at Downing Street last year, he promised to “get Brexit done” by October 31, but was blocked by Parliament. In response, Johnson prorogued Parliament, suspending the legislative body for five weeks, a move that many viewed as an attempt to prevent Parliament from scrutinizing a “no deal” exit from the European Union in the final weeks leading up to Brexit.[5]

In an extraordinary decision delivered in September 2019, the United Kingdom Supreme Court unanimously ruled that the Prime Minister’s prorogation of Parliament was unlawful. [6] All eleven justices in Miller II held that the judiciary could review the scope of the prorogation power, dismissing the government’s argument that the Prime Minister’s advice to the Queen to prorogue Parliament was a political question outside the court’s judicial sphere.[7] Lady Hale, the Supreme Court’s President, declared that the Prime Minister’s prorogation of Parliament unlawfully frustrated or prevented “without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as a body responsible for the supervision of the executive.”[8] Reading the Court’s single-voice judgment on live television—and sporting a now famous spider brooch[9]—Lady Hale put the Court’s ruling starkly: “This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper.”[10]

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Published on December 9, 2020
Author:          Filed under: Analysis
 
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Violation of Constitution has no Consequences, Rules Supreme Court of Maldives

—Ahmed Nazeer, P.h.D. Researcher in Public Law, University of Portsmouth 

Introduction 

The Maldives Supreme Court has ruled that violation of the constitution has no consequences unless the constitutional clauses explicitly stipulates a penalty. The ruling was part of the court’s justification in refusing disqualification of a government MP that decided to hold a position prohibited undersection 73(d) of the Maldives constitution. The court judgment (2020/SC-C/78, 2020/SC-C/79) was a case filed by an individual at the Supreme Court seeking a ruling that government MP Yaugoob Abdulla was disqualified under the constitution following his appointment to the council of the Institute of Chartered Accountants of Maldives –  a regulatory body formed under a parliamentary legislation (Law Number: 13/2020). The Supreme Court failed to provide a sound justification of how the justices arrived at the decision. However, since the tenure of Supreme Court justices hinge on parliamentary support, the risk attached to going against the government super-majority in the government may have been the primary factor that contributed to the flawed reasoning and weak justification of the court. The court’s main argument was that constitutional assembly did not intend disqualification of MPs for holding an office in violation of the constitution, and that the Institute of Chartered Accountants of Maldives was different to other regulatory bodies formed under the laws. Additionally, the court argued that section 73(d) did not mention the penalty for violating the section and therefore would not disqualify an MP. This case has great implications for the Maldivian constitutional sphere because if violation of section 73(d) did not warrant disqualification of MPs they can become ministers, serve in the police or the military, and join the civil service while still holding tenure in parliament.  

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Published on December 8, 2020
Author:          Filed under: Developments
 
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