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I·CONnect

Blog of the International Journal of Constitutional Law and ConstitutionMaking.org

Distinguishing Among Referenda (I-CONnect Column)

—Aslı Bâli, UCLA School 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 2017, see here.]

Over the last two months, the role of the referendum as a tool of populist mobilization and democratic decline has weighed heavily on my mind. The Turkish referendum was the obvious catalyst, but the use of referenda is also a subset of the broader question of how democratic processes may be used to subvert democracy. And all of these concerns are related to the question of the role of comparative law in a time of “democratic decay,” as my fellow I-CONnect columnist, Tom Gerald Daly has framed it. A quick survey of recent ICONnect posts makes clear the widespread concern about the corrosive effect of populist strategies on democratic practices. For instance, the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts draws attention to the degree to which populism may adopt the language of democracy and constitutionalism—as in Jan Werner Muller’s discussion of the Hungarian case—while eroding the substantive “minimum core” of democracy, including “longstanding commitments to free and fair elections, the separation of powers, basic human rights and government accountability,” as Rosalind Dixon argues.

These recent ICONnect pieces all engage important dimensions of the question of how populists harness the engine of democratic processes to undermine basic democratic commitments. How can we best understand this dynamic in the case of referenda? This question seems especially important in light of the remarkable number of high profile referenda that have taken place over the last year. Perhaps the most famous referendum of 2016 was the Brexit vote, but other examples include the constitutional referenda in Italy and Thailand, the Hungarian referendum over that country’s EU migrant quota and the referendum on the Colombian peace deal.  The Turkish constitutional referendum earlier this month may well have been a particularly acute instance of invoking the popular will to disable democratic restraints, but it is not the only one.

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Published on April 27, 2017
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Populist Constitutionalism & The Democratic Minimum Core

—Rosalind Dixon, University of New South Wales

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

Democratic “populism” is on the rise worldwide. In the last decade, Latin America has seen a wave of populist, neo-Bolivarian political change; Hungary and Poland have seen the election of nationalist parties openly opposed to the European project; and a majority of voters in the UK have voted for Brexit.  In the US, for the first time since 1953, a candidate with no prior political experience has been elected President, and the Tea Party has continued to make inroads in controlling the Republican Party.  If recent trends continue, in countries such as France, there is also likely more change of this kind to come.

For constitutional scholars, this new form of populist politics invites us to rethink many key assumptions of the field – i.e. that there are certain countries that count as “stable” rather than fragile constitutional democracies,[1] or that we can expect a continuing commitment to openness, internationalism and regional co-operation at least among such democracies.  Before we can begin this task or reassessing our core assumptions, however, we clearly need a better understanding as a field of the new phenomenon we are grappling with – i.e. what exactly is this new form of democratic populism, or populist constitutionalism?

Clearly not all forms of popular constitutional engagement are undesirable. Certain forms of popular participation in the process of constitutional implementation can actively contribute to overall democratic legitimacy.  This is one reason why ‘popular constitutionalists’ in the US actively defend the role of Congress in the process of constitutional interpretation.[2]  Many theories of weak-form review also implicitly rest on a similar logic about the value of a constitutional system being responsive to the views of democratic majorities.[3]  To define ‘populist constitutionalism’, we thus need criteria that can effectively distinguish it from this more normatively desirable form of popular constitutionalism.[4]

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Published on April 26, 2017
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Populism and the Courts

—Andrew Arato, The New School

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here.]

The antagonism of populist governments to apex courts is a matter of historical record, starting with Peronism, the first time that an openly populist movement established its own government. Currently, it is demonstrated by repeated conflicts between populist executive power and constitutional courts, and the often successful attempts of the former to pack and disempower the latter. Recent events in Venezuela, Israel, Hungary, Turkey and Poland indicate the attending harm to democratic government, and even these cases do not exhaust the present salience of the populist challenge that has now reached the United States. I believe that the way to oppose these trends requires a strategy that is both legal and political, based on the mutual support of associations and initiatives of civil society and courts.

What is populism? Given the pervasiveness and loose journalistic use of the term, attempts to define the phenomenon by induction are doomed to fail. It is better in my view to immanently criticize the best ideological attempt to justify populist politics, and thus reconstruct the main dimensions of the phenomenon from a logically coherent systematic argument. I have done this using the work of Ernesto Laclau [1] and have derived the following important elements of the phenomenon:

  1. Populism identifies popular sovereignty by referring to a part of the population that supposedly incarnates the people as a whole;
  2. constructs a rhetorical chain of equivalences, from heterogeneous and incompatible demands of the segments of “the people” so identified;
  3. establishes friend and enemy relations, over a frontier of radical antagonism, thereby extricating “the people” from its enemies within the population as well as outside;
  4. identifies the will of the extricated genuine “people” with the will of a group, and to avoid the possibility of a division, almost always with the name and will of a single leader.

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Published on April 25, 2017
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What’s New in Public Law

–Angelique Devaux, French Licensed Attorney (Notaire)

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 Pakistan ordered further probes into alleged corruption of Prime Minister Nawaz Sharif in the so called“Panama Leaks case.
  2. The Supreme Court of Israel ruled that some businesses may remain open on Shabbat in Tel Aviv.
  3. The U.S. Supreme court found unconstitutional Colorado policy of not automatically refunding court fees when a defendant’s conviction is reversed.
  4. The Supreme Court of India ruled that if a person does not protest someone illegally occupying her property for 12 years, then the squatter would get ownership rights over that property.
  5. The Supreme Court of Canada is expected to be asked for an advisory opinion on a genetic privacy bill.

In the News

  1. Russian lawmakers suggested a bill depriving terrorists of Russian citizenship.
  2. Three child bride survivors challenge Indonesia’s 1974 Marriage Law in the Constitutional Court.
  3. The Justice Minister of Turkey stated that the Constitutional Court has no jurisdictions over election appeals.
  4. The Nepal Government presented a new amendment constitution bill.
  5. Ireland may change its constitutional view on abortion.
  6. Russia banned Jehovah’s Witnesses after the Supreme court’s found the religion to be an “extremist sect”.
  7. The centrist Emmanuel Macron and the far right Marine Le Pen have both passed the first round and are qualified for the second round of the French presidential elections.

New Scholarship

  1. Tomasz Tadeusz Koncewicz, The “emergency constitutional review” and Polish constitutional crisis. Of constitutional self-defense and judicial empowerment, 2 Polish Law Review (2016) (arguing for “emergency constitutional review” exercised by ordinary courts in constitutional self-defence)
  2. Tom Gerald Daly, A Constitutional Court for Sri Lanka? Perceptions, Potential and Pitfalls’, (2017) (discussing the proposal to establish a Constitutional Court of Sri Lanka in the context of the ongoing constitution drafting process)
  3. Steven H. Shiffrin, What’s Wrong With the First Amendment, (2016) (providing a critique of free speech idolatry in a comparative context).
  4. Bilayana Petkova, Domesticating the ‘Foreign’ in Making Transatlantic Data Privacy Law, International Journal of Constitutional Law (forthcoming 2017), (analyzing data privacy protection with a focus on federalism, in a comparison of the United States and European Union).
  5. Manoj Mate, Judicial Supremacy in Comparative Constitutional Law, 92 Tulane Law Review (forthcoming 2017) (examining the prevailing conception of judicial supremacy in comparative constitutional law)

 Calls for Papers and announcements

  1. The sixth edition of the LUISS Summer Program on “Parliamentary Democracy in Europe” will be devoted to “Parliaments, democratic accountability and budgetary powers.” It will run from July 10 to 21. Students can apply for one week or two weeks. Application information, including details on the faculty and fees, is available here. The deadline for applications is April 30.
  2. The School of Law & Social Justice, University of Liverpool, invites submissions to a two-day workshop for postgraduate/early career researchers on “Contemporary Challenges in Constitutional Theory” to be held on June 19-20, 2017. The submission deadline is April 30, 2017.
  3. The Center for Constitutional Law at Akron seeks paper proposals for its Fall Virtual Symposium on Constitutional Remedies to be held on November 10, 2017.
  4. The Centre for Parliamentary Research organizes the Parliamentary Practice of Legislation in Europe Workshop on the “Day of Parliamentarism” to be held in Budapest on May 2, 2017.
  5. The Council on International Law organizes a seminar on “Freedom of Religion in Europe: Achievements and Perspectives” to be held at the Human Rights Building in Strasbourg, France, on Friday 28 April, 2017
  6. The Centre for Constitutional Studies and University of Alberta, Faculty of Law invites proposals for the conference “Reconciliation:Wahkotowin” to be held on September 21-23, 2017, at the River Cree Resort just outside of Edmonton, Alberta, Canada.
  7. The South African Intellectual Property Law Journal calls for submissions for publication in the 2017 issue.
  8. The Italian law Journal Comparazione e diritto civile invites submissions to a special issue on “Who needs Comparative Law?”  The submission deadline is April 30, 2017.
  9. The Competition Law Scholars Forum (CLaSF) invites submissions to a workshop on “Constitutional Challenges in Europe – The impact and role of competition law” to be held on September 14, 2017 at the University of Amsterdam.

Elsewhere Online

  1. Thomas A. Barnico, Was James Comey a Special Prosecutor?, Notice & Comment
  2. Chaima Lahsini, Morocco’s Constitutional Court: How does it work?, Morocco World News
  3. Caroline Naomé, La pratique du pourvoi devant la CJUE [Video in French, Part 3], Le blog de de droit Européen
  4. Adeel Hussain, How Old is 14 Really On Child Marriage and Case-by-case Justice, Verfassungsblog
  5. Franziska Brachthäuser, No Compromises on Reproductive Rights – Why Ireland Need Constitutional Change, Verfassungsblog
  6. Editorial Board, The Supreme Court Weighs the Church-State Division, The New York Times
  7. Anna Olijnyk, Burns v Corbett: the latest word on State tribunals and judicial power, AUSPUBLAW
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Published on April 24, 2017
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Populist Constitutions – A Contradiction in Terms?

—Jan-Werner Müller, Princeton University

[Editor’s Note: This post is part of the joint I-CONnect/Verfassungsblog mini-symposium on populism and constitutional courts. An introduction to the symposium can be found here. Professor Müller’s post is adapted from his book What is Populism? (Philadelphia: University of Pennsylvania Press, 2016) and from “Populism and Constitutionalism,” forthcoming in the Oxford Handbook of Populism.]

The meaning of “populism” is deeply contested.  It is striking, though, that many observers appear to agree on one point: whatever else it is, populism is inherently hostile to the mechanisms and, ultimately, the values commonly associated with constitutionalism: constraints on the will of the majority, checks and balances, protections for minorities, and even fundamental rights as such.  Populists are supposedly impatient with procedures; they are even said to be against “institutions” as such, preferring a direct, unmediated relationship between the personal leader and the people.  Connected with this supposed anti-institutionalism is the charge that populists dislike representation and opt instead for direct democracy (as exemplified by referenda).  Hence also the impression–widespread both among political philosophers and social scientists–that populism, despite some serious flaws, might under some circumstances serve as a “corrective” to a liberal democracy the has become too remote from the people.

This hope is misplaced.  But one can see how it arose, when one considers how the debate about constitutionalism and populism suffers from several unfortunate characteristics. First, the discussion often becomes conflated with the controversy about the merits of majoritarianism (and, conversely, judicial review). Second, there is no clear or even discernible distinction between popular constitutionalism on the one hand, and populist constitutionalism, on the other. And third and most importantly, “populism” frequently serves as a vague placeholder for “civic participation” or “social mobilization” (and, conversely, for weakening the power of judges and other elites).[1]  Quite apart from the vagueness of the notions used (or perhaps because of this vagueness), there’s the fact that debates about populism and constitutionalism–especially in the U.S.–quickly turn emotional, with accusations of elitism and “demophobia” flying about, and theorists accused of having bad “attitudes toward the political energy of ordinary people” or, alternatively, of promoting “ochlocracy.”[2]

However, populists are not generally “against institutions,” and they are not destined to self-destruct once in power, as a widespread view among liberals naively assumes.  They only oppose those institutions that, in their view, fail to produce the morally (as opposed to empirically) correct political outcomes.  Populists in power are fine with institutions–which is to say: their institutions.

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Published on April 23, 2017
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Introduction: Constitutional Courts and Populism

—Michaela Hailbronner, University of Münster, Germany, and David Landau, Florida State University College of Law

This mini-symposium is a joint project between the editors of the Verfassungsblog and the editors of I-Connect. We have brought together a number of prominent scholars, working on different issues, approaches, and regions of the world, and invite contributions by others, to tackle a pressing issue: the importance of populism for comparative constitutional law. Scholars of certain countries and regions, such as Latin America, have long been attuned to this issue. But recent events have made it a central concern for countries long thought relatively immune to its challenges, both in North America and Europe. The challenge of populism is thus ripe for Global South-Global North dialogue, perhaps indeed with the rich experiences of the Global South serving as a major source of ideas for the north.

This brief introduction highlights several of the major themes examined by the posts in the symposium: the nature of the challenge posed by populism to constitutionalism, the extent to which constitutional design gives us answers to this threat, and the ability of judges in particular to act as a counterweight to populist pressures. We take these issues in turn, giving a brief overview of the contributions themselves in the course of that.

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Published on April 22, 2017
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Call for Papers–“What can Central and Eastern Europe Learn from the Development of Canada’s Constitutional System?”–Budapest, Hungary–28 June 2017

Call for Papers

International Symposium on 
What can Central and Eastern Europe Learn from the Development of Canada’s Constitutional System?

On the Occasion of the 150th Anniversary of Confederation

Eötvös Loránd University (ELTE), Faculty of Law
Egyetem tér 1-3.
Budapest, Hungary

28 June 2017

Convened by
Pál Sonnevend
Nóra Chronowski
Eszter Bodnár
Zoltán Pozsár-Szentmiklósy

This Symposium will convene a group of scholars to reflect on the history and evolution of the Constitution of Canada, on its written and unwritten dimensions and on its influence abroad taken on a wide perspective.

Submissions are invited from scholars of all levels – from senior scholars to doctoral students (especially from the Central and Eastern European region) – on one or more of the following subjects. We invite participants to take any methodological approach they wish, including comparative, doctrinal, empirical, historical and/or theoretical perspectives.

  1. The History and Evolution of the Constitution of Canada
  2. The Influence Abroad of the Constitution of Canada on Constitutional Practice
  3. The Influence Abroad of the Constitution of Canada on Constitutional Culture

The Symposium will be highlighted by keynote addresses of Jeremy Webber, Professor and Dean of Law at the University of Victoria and Richard Albert, Professor at Boston College Law School.

How to Participate

Interested scholars are asked to submit an abstract no longer than 500 words by 10 May 2017 to canadabudapest2017@gmail.com. A Symposium Selection Committee will choose abstracts and notify all scholars no later than 15 May 2017. Full drafts of papers will be due by email to canadabudapest2017@gmail.com no later than 14 June 2017. Papers should be no longer than 10,000 words (footnotes included).

A selection of papers presented at the Symposium will be published in the ELTE Law Journal, subject to successful blind peer-review.

Costs

There is no cost to participate in the Symposium. Participants are responsible for securing their own funding for travel, lodging and other incidental expenses. The Eötvös Loránd University (ELTE) will sponsor lunch and dinner on the day of the Symposium.

Questions

Please direct inquiries in connection with this Symposium to János Mécs or Veronika Kéri, project assistants at canadabudapest2017@gmail.com.

Sponsors

We thank the Embassy of Canada, Budapest, Hungary for supporting this Symposium.

About the Keynote Speakers

Jeremy Webber

Jeremy Webber is Dean of Law at the University of Victoria (2013 to present). He was appointed a Fellow of the Trudeau Foundation in 2009 and a Fellow of Royal Society of Canada in 2016. From 2002 to 2014 he held the Canada Research Chair in Law and Society at the University of Victoria. Prior to joining UVic, he was Dean of Law at the University of Sydney, Australia (1998-2002) and Professor of Law (and Associate Dean, Graduate Studies and Research) at McGill University (1987-1998).

Professor Webber has written widely in the areas of constitutional law, Indigenous rights, federalism, cultural diversity, and constitutional theory, in Canada and in relation to other countries (especially Australia). His work has been published in six languages in fourteen countries. He is the author of Reimagining Canada: Language, Culture, Community and the Canadian Constitution (1994) and The Constitution of Canada: A Contextual Analysis (2015). He is co-editor of:  Let Right Be Done:  Aboriginal Title, the Calder Case, and the Future of Indigenous Rights (2007; with Hamar Foster and Heather Raven); Between Consenting Peoples:  Political Community and the Meaning of Consent (2010; with Colin Macleod), Storied Communities: Narratives of Contact and Arrival in Constituting Political Community (2011, with Hester Lessard and Rebecca Johnson), and Recognition versus Self-Determination: Dilemmas of Emancipatory Politics (2014, with Avigail Eisenberg, Glen Coulthard, and Andrée Boisselle).

Richard Albert

Richard Albert writes about constitutional amendment from comparative, doctrinal, historical and theoretical perspectives. He is currently completing a monograph on constitutional amendment to be published by Oxford University Press. He is also co-editor of “The Foundations and Traditions of Constitutional Amendment (Oxford: Hart 2017), “Canada in the World: Comparative Perspectives on the Canadian Constitution” (Cambridge University Press 2017) and “The Oxford Handbook of Caribbean Constitutions” (Oxford University Press 2018). Since 2014, he is Book Reviews Editor for the American Journal of Comparative Law, which awarded him the Hessel Yntema Prize for “the most outstanding article” on comparative law by a scholar under 40. A former law clerk to the Chief Justice of Canada and a founding co-editor of I-CONnect, he is a graduate of Yale, Harvard and Oxford. Richard Albert is currently a full professor at Boston College Law School, and he has been appointed to the visiting faculty at Yale University, Externado University of Colombia, the University of Toronto, and the Interdisciplinary Center (Herzliya) in Israel.

About the Conveners

Pál Sonnevend 

Pál Sonnevend is Vice-Dean for International Affairs at the ELTE Faculty of Law. He is an Associate Professor of European and International Law and the head of the International Law Department. He also has a remarkable experience in constitutional law, administrative law, energy law and international arbitration. He has been teaching EU law and international law since 1998. Previously, he advised two consecutive presidents of Hungary, His Excellency Mr. Ferenc Mádl and His Excellency Mr. László Sólyom, in constitutional matters.

Nóra Chronowski

Nóra Chronowski is an associate professor at Eötvös Loránd University Faculty of Law, chair-holder of Constitutional Law Department and visiting researcher at Hungarian Academy of Sciences Centre of Social Sciences Institute for Legal Studies in Budapest. She is the author of several books and over 190 articles, editor in chief of “Közjogi Szemle”, a Hungarian public law periodical. She participated in six international research cooperations supported by ERC and European Commission and was Jean Monnet Chair-holder from 2007 to 2010 at University of Pécs Faculty of Law. Her research interests are comparative, EU and Hungarian constitutional law, human rights protection, minority rights.

Eszter Bodnár

Eszter Bodnár has been an assistant professor at the Faculty of Law of University Eötvös Loránd (ELTE) in Budapest, Hungary since 2013. She teaches comparative constitutional law, Hungarian constitutional law, and international human rights at the Department for Constitutional Law. She is a legal adviser at the Association of European Election Officials and member of Advisory Board of Head of Supreme Court in Constitutional Matters. She is also a faculty member in the Master of Electoral Policy and Administration program of Scoula Sant’Anna, Pisa. She graduated as a lawyer and worked at the Department of Constitutional Law in the Hungarian Ministry of Justice, and in the Hungarian National Election Office. She obtained her PhD degree in constitutional law in 2013.

Zoltán Pozsár-Szentmiklósy

Zoltán Pozsár-Szentmiklósy is an assistant professor of constitutional law at the Eötvös Loránd University (ELTE), Budapest. Besides, he has been the Rector’s commissioner-general for student affairs at the same institution, since 2013. He served as the director of the ELTE Bibó István College of Advanced Studies between 2008-2012 and as an elected member of the National Election Commission of Hungary between 2010-2013. Previously he worked as a legal officer of the Hungarian Helsinki Committee, an NGO working for the protection of fundamental rights and the enforcement of the rule of law. He obtained his PhD degree in constitutional law in 2014. His research interests are comparative constitutional law, the principle of proportionality and direct democracy.

About the Host Academic Institution

The Eötvös Loránd University (ELTE) is Hungary’s oldest, largest and most prestigious university. Tuition at the Faculty of Law of ELTE University began in 1667 so this year we celebrate our 350th anniversary. The Faculty of Law maintains wide-ranging international relations primarily with universities in Europe and is proud to be involved in educational and research projects with similar institutions abroad. In recent years, we have placed special emphasis on consolidating ties with universities in neighboring countries to promote intensive regional co-operation in legal education. Find more information on: http://www.ajk.elte.hu/en.

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Published on April 21, 2017
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Mandatory Voting as a Tool to Combat the “New Populism”

—András László Pap, Research Chair, Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies; SASPRO-Marie-Curie Fellow, Slovak Academy of Sciences Institute for Sociology; Recurrent Visiting (Adjunct) Professor, Central European University; Professor, National University of Public Service, Budapest, and Anna Śledzińska-Simon, Assistant Professor, University of Wrocław

 

The Hungarian and Polish experience of constitutional capture by a parliamentary majority that disregards any limitations of power and ruthlessly subordinates all once-independent sectors of public life, including the judiciary, media, academia, and civil society, clearly demonstrates that once in power, populist governments and their leaders are virtually unstoppable. While disestablishing the rule of law, they still claim to have democratic legitimacy of the popular will.

This comment is prompted by a search for a successful strategy to combat the “New Populism” and makes the following arguments. The “New Populism” and illiberal democracies flourish in domestic cold wars that demonize political opponents while populist leaders rely on “disenchantment” and large-scale disillusionment in most political parties by the majority of voters, who do not take part in the elections. In this context we ask whether mandatory voting, a model currently used and enforced in several states, could be a potential silver bullet to dethrone autocratic populists.

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Published on April 19, 2017
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What’s New in Public Law

–Sandeep Suresh, LL.M in Comparative Constitutional Law (Central European University, Budapest)

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 Indian Supreme Court held that citizens have the right to access the Internet, and search engines must not encroach upon that right but must censor prenatal sex determination advertisements on the Internet according to the law.
  2. The Federal Constitutional Court of Germany ruled that restrictions on gambling halls imposed by laws of three Laender are constitutional.
  3. The Constitutional Court of Hungary annulled local regulations in Asotthalom village that banned muezzins operating in public areas, banned burkas and chadors, and also “propaganda activities that present marriage in other ways than the bond between a man and a woman.”
  4. The Federal Constitutional Court of Germany rejected an appeal against the Germany’s data retention law.
  5. The Constitutional Court of South Africa decides whether a non-confidence motion against President Jacob Zuma may be initiated through secret ballot.

In the News

  1. Turkish people approved constitutional amendments in a referendum that will grant the President sweeping new powers.
  2. The Hungarian National Assembly passed a law on higher education that constrains the operation of non-EU universities in the country. And while it is not specifically named, it has been widely noted that the legislation seems to target one institution in particular: The Central European University (CEU).
  3. Justice Neil Gorsuch was sworn in as a judge of the US Supreme Court.
  4. The Indian Supreme Court Collegium, the body responsible for recommending names for judicial appointments, recommended 51 candidates for appointments to 10 High Courts at once.
  5. The Parliament of Egypt passed an amendment to the country’s emergency law to allow detention without warrants and for indefinite periods.
  6. Nigeria is to deal with diverging versions of the Constitution in circulation.
  7. Saldi Isra has been appointed to the Indonesian Constitutional Court. [Submitted by Rosa Ristawati.]

New Scholarship

  1. Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale Journal of International Law (forthcoming 2018) (introducing and theorizing the phenomenon, concept, doctrine and theory of constitutional dismemberment, a type of constitutional change situated between an amendment and a new constitution)
  2. Karen J. Alter, National Perspectives on International Constitutional Review: Diverging Optics, in Erin Delaney and Rosalind Dixon (eds.), Comparative Judicial Review (forthcoming 2018) (discussing two diverging lenses which national judges use to approach international law and rulings of international courts)
  3. Moshe Cohen-Eliya and Iddo Porat, The Administrative Origins of Constitutional Rights and Global Constitutionalism, in Mark Tushnet and Vicki Jackson (eds.), Proportionality: New Frontiers, New Challenges (forthcoming 2017) (explaining the difference in the development of constitutional and administrative law in the US and Europe, and the influence of that difference on the conception of constitutional law and rights)
  4. Mark Elliott, The Supreme Court’s Judgment in Miller: In Search of Constitutional Principle, Cambridge Law Journal (2017) (critically examining the UK Supreme Court’s judgment in (Miller) v Secretary of State and exposing certain drawbacks of the majority judgment)
  5. Asim Jusic, Mobilizing Around Religious Symbols: The European Court’s Margin of Appreciation between Consent, Mobilizations and Status, University of Pennsylvania Journal of International Law (forthcoming 2017) (critically scrutinising the European Court of Human Rights’s use of the doctrine of margin of appreciation in cases involving controversial religious symbols)
  6. Rebecca E. Lipman, Protecting Privacy with Fourth Amendment Use Restrictions, George Mason Law Review (forthcoming 2017) (offering a new, two-track approach based on doctrines of the fourth amendment to restrict certain uses of lawfully collected material by the Police authorities)
  7. Anne Peters, Constitutionalisation (2017) (showing the various aspects of constitutionalisation of international law and international organisations)

Calls for Papers and Announcements

  1. The European Law Institute invites original unpublished papers for the “1st ELI European Young Lawyers Award.” The award winner will be eligible to present his or her paper at the ELI Annual Conference. Interested authors must submit their papers by April 30, 2017 to award@europeanlawinstitute.eu.
  2. The Spring 2017 Issue of the ‘European Journal of Legal Studies’ has been released. The topics discussed in this issue include the Council of Europe Istanbul Convention on Preventing and Combating Violence against Women and Domestic Violence, the European Court of Justice’s interpretation of the fundamental right to conduct business, the cross-border portability of online content services in the EU, and empirical legal studies.
  3. The Harvard Journal on Racial and Ethnic Justice invites submissions for a volume of “Race in Education.” Interested authors must send their papers to hjrejsubmissions@gmail.com. Submissions are accepted on a rolling basis.
  4. The Manchester Centre for Political Theory at the University of Manchester invites papers for presentation at the Workshop on “Change of Law in a Democratic State: Normative Foundations and Factual Processes,” to be held on September 11-13, 2017. Interested participants must submit abstracts of their papers before June 1, 2017 to michal.dru@gmail.com.
  5. The CyberLaw Program at the Hebrew University and the Cyber, Law, and Policy Center at the Haifa University invites paper proposals for the Conference on “Cyber Challenges to International Human Rights.” The conference will held in Jerusalem and Haifa on December 11-12, 2017. Interested scholars must submit their proposals to hcsrcl@gmail.com by May 1, 2017.

Elsewhere Online

  1. Giancarlo Anello, The Holy Word does not come strictly in Italian – Another Islamophobic Law stopped in Northern Italy, Verfassungsblog
  2. Gautam Bhatia, What is the Role of a Judge in a Polyvocal Court?, Indian Constitutional Law and Philosophy
  3. Colin PA Jones, Japanese people v. the United States et al, Japan Times
  4. KM Hayne, The ‘Great Repeal Bill’, UK Constitutional Law Blog
  5. Alok P Kumar, No Democracy Without the Courts, Firstpost
  6. Tarik Olcay, Turkey’s Presidentialist Shift: An Anticonstitutional Amendment?, Blog of the IACL, AIDC
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Published on April 17, 2017
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What’s at Stake in the Turkish Constitutional Amendment Proposal

–Ilayda Gunes, The University of Chicago Law School

In the wake of the failed coup attempt of July 15, 2016, Turkey has been struggling to heal its wounds under a state of emergency. Apart from the loss of hundreds of lives and more than 2,000 injured in clashes during the abortive coup, the country has also been facing a string of terrorist attacks from the Islamic State (ISIS) and the Kurdistan Workers’ Party (PKK). This was followed by a decrease in consumer and business confidence, which led to a steep depreciation in the Turkish lira against other currencies.

In the midst of this unprecedented blend of national crises, on January 21, 2017, the Turkish parliament passed a constitutional amendment bill with 18 articles that would, among other measures, augment the powers of the president and convert the country from a parliamentary political system into a presidential one. The bill was proposed by the ruling Justice and Development Party (AKP) and supported by the minor opposition Nationalist Movement Party (MHP).[1] To enter into force, the amendments must be approved by public referendum that will be held on April 16, 2017.

The presidentialism debate in Turkey is not new. The idea of transforming the current parliamentary system — in which the president’s powers are largely ceremonial — into a system that unifies the head of government (prime minister) with the head of state (president) has been on the agenda since the 1980s. Yet it has only recently become a viable option and begun to bear fruit.

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Published on April 14, 2017
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