Blog of the International Journal of Constitutional Law

Special Contribution to I-CONnect–Brazilian Supreme Court Justice Luís Roberto Barroso–The Republic that is Yet to Be

[Editor’s Note: On this special occasion of the 30th anniversary of the Brazilian Constitution, Justice Luís Roberto Barroso of the Brazilian Supreme Court shares his views on present-day Brazil. A longer version of Justice Barroso’s reflections is available here.]

–Luís Roberto Barroso, Justice at the Brazilian Supreme Court; Professor at the Rio de Janeiro State University; Senior Fellow at Harvard Kennedy School.

As we celebrate the thirtieth anniversary of the Brazilian Constitution, it is time to look back and take stock of the achievements and frustrations of these past years. On the positive side of our evaluation, we may include: thirty years of institutional stability, the achievement of monetary stability and significant social inclusion. In a single generation, we defeated dictatorship, controlled inflation, and won striking victories over extreme poverty. No battle is unwinnable.

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Published on November 9, 2018
Author:          Filed under: Developments

Constitutional Amendments as Transnational Political Projects: From Pakistan to Ireland, to Hungary And Finally to Europe

Renáta Uitz, Central European University

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

On October 31, 2018 the Supreme Court of Pakistan by the judgment of a 3-judge bench acquitted Asia Bibi of blasphemy charges.[1] Ms Bibi has been on death row since her initial conviction in 2010. The criminal prohibition of blasphemy in Pakistan reached its current form in 1986, under the rule of General Zia ul-Huq. The death penalty was imposed after the Federal Shariat Court found that life imprisonment as an alternative punishment was not compatible with the fundamental principles of Islam.[2]

Asia Bibi’s case originated from a petty argument: while working in the fields, Muslim women accused Ms. Bibi, a Christian, with contaminating a bucket of drinking water. The Supreme Court acquitted her due to procedural shortcomings in the case, including inconsistencies in witness statements. That the blasphemy ban is used as a tool of revenge was pointed out by the Supreme Court in 2015, quoting from the Judicial Training Toolkits of the Legal Aid Society:

The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.[3]

This 2015 judgment was rendered in the case of a bodyguard who murdered the governor of the state of Punjab after he had visited Ms. Bibi in jail.

The weekend before the acquittal of Asia Bibi, on October 27, 2018, the Irish voters overwhelmingly voted to remove the prohibition of blasphemy from the Irish Constitution (Article 40.6.1). This 37th Amendment was passed by a margin of 64.85% to 35.15%, with each constituency voting in favor.[4]

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Published on November 8, 2018
Author:          Filed under: Analysis

Call for Panels and Papers–2019 ICON•S Conference on “Public Law in Times of Change?”–July 1-3, 2019–Santiago de Chile

ICON·S | The International Society of Public Law is pleased to announce that its 2019 Annual Conference will be held at the Pontifical Catholic University of Chile in Santiago, on July 1-3, 2019. This will be the sixth Annual Conference of ICON·S, following the five Annual Conferences (Florence 2014, New York 2015, Berlin 2016, Copenhagen 2017, Hong Kong 2018) which have been overwhelmingly successful, thanks to the support of our Members.

ICON·S now invites panel and paper submissions for the 2019 Annual Conference on “Public Law in Times of Change?”.

Public law is facing a myriad of new challenges – including rising popular distrust in government, increasingly closed borders, and complex economic and technological change. We are arguably living in hard times for global public law. But will these challenges result in radical changes to the field as we know it, or will public law adapt and respond in ways that reinterpret and reinvigorate its core commitments to democracy, the rule of law, and human rights in a manner that is continuous with our current practices?

Countries around the world are witnessing the reversal of longstanding democratic gains, and new authoritarian threats. Yet there are signs of resilience in the global and national public law order: popular referenda have delivered gains as well as losses for democracy; women and young people have marched in defence of public law values; and justice is being crowd-sourced and data-driven, not just undermined by foreign cyber-attacks and “fake news”.

Under the strain of technological changes and shifts in economic globalisation, the world is also confronting large-scale changes in the structure and scope of global governance and of the “administrative” state. The Welfare State is under “siege” and at both international and domestic levels the problem of economic injustice is dominating the political and socio-economic debate around the globe.

International and regional bodies are re-orienting their focus to respond to these new challenges. And commitments to constitutional and administrative reform likewise remain strong in many legal orders. They continue to engage in formal processes of constitutional review, often as part of a transition from authoritarian to democratic, and colonial to post-colonial rule: from Chile to Myanmar, Bolivia to Tuvalu, Yemen to Sudan, and from the Philippines to Gambia. Many countries are actively debating proposals for major constitutional and legal reform. Others are grappling with the legacies of past reforms and transitions, and asking whether they were sufficient to address legacies of colonialism, and the abuse of human rights, and flagrant disregard for the rule of law.

But how far can public law go in responding to these issues? Are the sources of the current democratic crisis so deeply economic and structural that they evade any meaningful public law response? Are they rooted in debates over national identity and borders, which public law can address only partially and indirectly at best? Or does public law have the resources to adapt and respond to these challenges? Can public law, for example, help shape the future direction of state and global governance, or will changes in national and international governance in fact reshape public law as we know it?

This Annual Conference will seek to address these and related issues, bringing together leading scholars, political leaders and jurists from around the world to debate these questions, and their relevance to Latin America, their own countries, and the world.

The Conference will feature a keynote address by Justice Luís Roberto Barroso of the Supreme Federal Court of Brazil, as well as three plenary sessions featuring prominent jurists, intellectuals and judges, focused on the general themes of the Conference. A provisional program can be found here. At the heart of the Conference, however, are the concurrent sessions during the three-day conference which will be devoted to the papers and panels selected through this Call.

ICON·S particularly welcomes proposals for fully-formed panels, but also accepts individual papers dealing with any aspect of the Annual Conference’s themes. Paper and panel proposals may focus on any theoretical, historical, comparative, empirical, jurisprudential, ethical, behavioral, ethnographic, philosophical or practical, policy-oriented perspective related to public law, including administrative law, constitutional law, international law, criminal law, immigration and citizenship law and human rights and may address domestic, subnational, national, regional, transnational, supranational, international and global aspects of public law.

We strongly encourage the submission of fully-formed panels. Panel proposals should include at least three papers by scholars who have agreed in advance to participate, and panel must be formed in accordance with the Society’s commitment to gender balance. Such fully-formed panel proposals should also identify one or two discussants, who may also serve as panel chair and/or paper presenter. Please kindly note that each participant can present not more than 2 papers and participate – as presenter, chair or discussant – in 4 panels maximum.

Proposals of fully formed panels may be made of – or include some – papers written and presented in Spanish. In these latter cases, paper abstracts and/or panel description must in any event be submitted in English.

Concurrent panel sessions will be scheduled over two days. Each concurrent panel session will be scheduled for 90 minutes.

We invite potential participants to refer to the ICON·S Mission Statement when choosing a topic or approach for their papers or panels.

ICON·S is by no means restricted to public lawyers! We particularly welcome panel proposals that offer genuinely multi-disciplinary perspectives from various areas of law (including civil, criminal, tax, and labor law), as well as from scholars in the humanities and the social sciences (e.g. history, economics, political science, sociology) with an interest in the Conference’s themes. We welcome submissions from both senior and junior scholars (including doctoral students) as well as interested practitioners.

All submissions must be made through the ICON·S website by March 9, 2019. To access the submission page, you need to be a member of ICON·S. Please register or log in with your existing ICON·S account and make sure you have paid your membership fee.

Successful applicants will be notified by April 1, 2019.

All participants will be responsible for their own travel and accommodation expenses.

We very much look forward to receiving your paper and panel proposals.

See you at ICON·S Santiago 2019!

Lorenzo Casini & Rosalind Dixon
Co-Presidents of ICON·S

Richard Albert, Gráinne de Búrca, Mariana Canales, Claudia Golden, Ran Hirschl, David Landau, Ruth Rubio Marin, Francisco Urbina, Cristián Valenzuela, Sergio Verdugo, Joseph Weiler and Fred Felix Zaumseil
Members of the ICON·S 2019 Organizing Committee

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Published on November 8, 2018
Author:          Filed under: Developments

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VIII: Popular Consultations Regarding Mining Projects in Colombia

[Editor’s Note: This is the final installment in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here, Part VI is available here and Part VII is available here. We once again thank the Externado University of Colombia for organizing this symposium.]

–Magdalena Correa Henao, Head of the Constitutional Law Department at Universidad Externado de Colombia

In this entry, I will focus on the case of popular consultations about mining projects in Colombia, as an excellent example to figure out how democratic democracy actually is.

Popular consultation is a constitutional mechanism for citizen participation (Art. 40.2. and 105 of the Constitution and Laws 134/94 and 1757/15) that allows the people to make binding decisions regarding a question posed by the president, governor, or the mayor in these cases (Article 8, Law 134/94). In case of mining projects, consultation is required by law (Article 33 of law 136/94).

However, those rules were ignored for several years. It was until 2013 that the subject of popular consultation about mining projects became important when people started to use them as a form of resistance to the national government´s policy of promotion of extractive industries (or the so called “mining locomotive” that would foster economic development in Colombia). Since 2013, Colombia has had 9 local consultations about extractive projects[1]. In 100% of cases people said “NO” to the development of those projects. Moreover, 44 additional consultations are currently in process.

Here, I will focus on these popular consultations, and not in other types of local decisions regarding the development of mining projects[2].  Read the rest of this entry…

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Published on November 8, 2018
Author:          Filed under: Analysis

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VII: The Political Parties: From a Two Party System to the Crisis of Representation in Colombia

[Editor’s Note: This is Part VII in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here, Part V is available here and Part VI is available here.]

–Luisa Fernanda García López, Profesora Principal, Universidad del Rosario

The Colombian political system is considered to have the largest institutional continuity in Latin America. However, the degree of the political parties’ implication within the political reality of the country has been rigid and without obligation during the country’s different institutional transformations. The political parties have been real participants of the voting and the legislative systems, but not real participants during the political reforms particularly during the one in the 1990s. Between 1958 and 1991, Colombian democracy was well known for being a restricted or controlled democracy because the national agreement closed off political participation to other movements and political parties. Taking turns in office was limited to the two traditional parties. The limitations by both the Conservative Party and the Liberal Party created huge unpopularity and promoted high levels of abstention during elections. Repercussions began in the 1980s. During this time of huge instability, strong violence and confrontations among several guerrilla groups started to settle down. On one hand, the Medellin cartel allied with the M-19 a guerilla group that stormed the Court House in 1986 and decimated the Court Criminal Chamber. On the other hand, the Cali cartel interfered in the government elections by funding Ernesto Samper’s presidential campaign who was elected president in 1994. Finally, paramilitary groups were initially named “Convivir” (Cohabit) to fight the guerrillas’ kidnapping and drug trafficking that dominated most of the country. Thereafter, in the early 1990s, these groups entered in the business and culture of drug trafficking, and became illegal groups called paramilitary. This Colombian reality shows the lack of solid institutions, neither leaders nor strong political parties that actually represent the Colombian society.

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Published on November 7, 2018
Author:          Filed under: Analysis

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part VI: Explaining the Institutional Role of the Colombian Constitutional Court

[Editor’s Note: This is Part VI in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here, Part IV is available here and Part V is available here.]

–Diego González, Professor of Constitutional Law at Universidad Externado de Colombia

The standard opinion suggests that the significance and the very power of the Colombian Constitutional Court (CCC) is a consequence of having dysfunctional legislative bodies and weak administrative agencies. According to this, the CCC is a central player in the political system as long as it has attempted to approach some of the black holes left by the political branches, created by either the lack of political will or by dysfunctional public policies. This article contends that this is only partially true. Other sets of reasons can help explain why the CCC has developed as it has. This paper I presented at the Externado Symposium explores four arguments: historical, normative, conceptual and practical.

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Published on November 6, 2018
Author:          Filed under: Analysis

What’s New in Public Law

–Nausica Palazzo, Ph.D. Researcher in Comparative Constitutional Law, University of Trento

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

Developments in Constitutional Courts

  1. The European Court of Human Rights found that a conviction for insulting Muhammed was not in violation of freedom of expression.
  2. The Constitutional Court of South Africa directed the government to rectify apartheid-era legislation preventing African women from owning property.
  3. A regional Constitutional Court in Russia ruled that the border law tracing new borders with Chechnya is unconstitutional.
  4. The Supreme Court of South Korea found for the first time a right to conscientious objection to military service on religious and political grounds.
  5. The Constitutional Court of Moldova held that the law conditioning children’s admission to schools and other communities upon vaccination does not violate the constitution.
  6. The U.S. Supreme Court declined to hear Republicans’ challenge to Pennsylvania electoral map.
  7. The Italian Constitutional Court urged Parliament to amend the current law prohibiting assisted suicide.

In the News

  1. Ireland removed blasphemy from the constitution through popular vote.
  2. Far-right candidate Bolsonaro won the presidential elections in Brazil.
  3. Armenia on its way to approving amendments to the electoral law.
  4. Georgia is to hold a runoff vote for presidential elections on November 6.
  5. UK High Court ruled that that pension plans under the guaranteed minimum pension (GMP) scheme should be gender equalized.
  6. Former Bangladesh Prime Minister was found guilty of corruption.
  7. Slovakia rejected a constitutional amendment on the election of the Constitutional Court judges.
  8. Ukraine scheduled a constitutional amendment where it pledges to join the EU and NATO.
  9. A Chinese Arbitration Court held that Bitcoins can be legally held and transferred.

New Scholarship

  1. David Boonin (Ed.), The Palgrave Handbook of Philosophy and Public Policy (Palgrave Macmillan, 2018) (offering a rich collection of philosophical papers on public policy issues such as abortion, punishment, gene editing, military drones)
  2. Asem Khalil, State of Necessity, in The Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University Press, 2018) (exploring the use of the category of state of necessity across different areas of law, such as constitutional, criminal and international law)
  3. Judith Resnik, The Functions of Publicity and of Privatization in Courts and their Replacements (from Jeremy Bentham to #MeToo and Google Spain), in Burkhard Hess and Ana Koprivica (eds), Open Justice: The Role of Courts in a Democratic Society (Nomos, 2019) (exploring the procedures to balance the right to ready access to information and the right to be forgotten, and the proposed reforms to such procedures)
  4. Joseph Raz, The Law’s Own Virtues, available on SSRN (providing a new elaboration of the rule of law)
  5. Manoj Mate, Constitutional Erosion and the Challenge to Secular Democracy in India, in Mark Graber, Sanford Levinson & Mark Tushnet (eds.), Constitutional Democracy in Crisis? (Oxford University Press, 2018 Forthcoming) (exploring the process of “constitutional erosion” of secularism caused by religion and religious rhetoric in India’s elections)
  6. Robert Leckey, Judging in Marriage’s Shadow, 26 Feminist Legal Studies (2018) (parsing out the Canadian case law on cohabitation and contending that it risks revitalizing traditional ideals of the good marriage)

Calls for Papers and Announcements

  1. Boston College Law School, with support from the Institute for Liberal Arts Submissions, invites faculty and graduate students to participate in a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
  2. Paper proposals are solicited for the Fourth Illinois-Bologna conference on Constitutional History: Comparative Perspectives, to be held in Chicago on April 29 & 30, 2019.
  3. The Law and Society Association welcomes paper proposals to participate in the Annual Meeting, to be held on May 30-June 2, 2019 in Washington DC. This year’s theme is “Dignity,” and the deadline for individual papers is November 7, 2018.
  4. The ASLI has issued a call for Papers for the 16th ASLI Conference on “The Rule of Law and the Role of Law in Asia,” to be held on June 11-12, 2019 in Singapore. The deadline for submitting abstracts is December 3, 2018.
  5. The ASLI and the National University of Singapore Faculty of Law welcome papers for the Asian Law Junior Faculty Workshop to be held on June 13, 2019 in Singapore, opened to scholars who have been in a full-time academic or research position for less than 7 years. The deadline for submission is 12 November 2018.
  6. The North-West University has issued a call for papers for the conference “Law, Roots and Space” to be held in Potchefstroom, SA on April 15-17, 2019. Proposals should be sent by November 30, 2018.
  7. The ICRC has launched a call for papers on “Historical perspectives on medical care in armed conflict.” Authors are invited to send short research proposals (2 pages) at at any time, and complete papers by April 31, 2019.
  8. Bocconi University invites applicants for the PhD in Legal Studies – Curriculum in International Law and Economics. Applications are due by January 16, 2017.
  9. The Faculty of Law at The Chinese University of Hong Kong invites applications for several positions as Professor/Associate Professor/Assistant Professor, especially in the following areas: Oil & Gas Law; Comparative Constitutional Law; International/Comparative Criminal Justice; International Economic Law; Property Law; Common Law. Applications close on November 15, 2018.

Elsewhere Online

  1. David R. Cameron, After another defeat in state election, Merkel announces she will step down as CDU leader, Yale Macmillan Center
  2. Paul Dermine, The Italian Budget Drama – Brussels and Rome on Collision Course, Verfassungsblog
  3. Francisca Pou Giménez & Ana Micaela Alterio, Book Review: Transformative Constitutionalism in Latin America, IACL-AIDC BLOG
  4. Bernard Bell, Mandating Drug Price Transparency (Part II), Notice & Comment
  5. Priya Singh Nelson, Between Narratives and Borders, The Völkerrechtsblog
  6. Alastair Richardson, Ireland Votes to Remove Blasphemy Offence from Constitution, OxHRH Blog
  7. Matthew Dresden, Did China Really Create a New Trademark Office?, China Law Blog
  8. Sarah Morales, Supreme Court of Canada should have recognized UNDRIP in Mikisew Cree Nation v. Canada, Canadian Lawyer
  9. Renáta Uitz, What Being Left Behind by the Rule of Law Feels Like, Part II, Verfassungsblog
  10. Oliver Patel, The EU’s negotiating strategy has worked so far, but it’s playing a risky game, The Constitution Unit
  11. Anurag Deb & Conor McCormick, The Bradley Bill and the cessation of constitutionalism in Northern Ireland, Admin Law Blog
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Published on November 5, 2018
Author:          Filed under: Developments

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part V: Strong and Weak Courts: A Preliminary Approach to Judicial Strength

[Editor’s Note: This is Part V in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, Part III is available here and Part IV is available here.]

Vicente F. Benítez-R., JSD student at NYU and Constitutional Law Professor at Universidad de La Sabana

Constitutional courts are essential institutions in new democracies. It is almost impossible to find a democratic regime without a constitutional (or supreme) court in charge of judicial review of legislation. The expansion of constitutional courts across the globe, has led to a growing interest in analyzing their role as political actors. One of the main strands in this inquiry tries to answer the question relative to what factors enable or hinder the rise of a ‘successful’ or ‘strong’ constitutional court. In this context, it is usual to find analyses that examine typical examples of successful courts (such as the Colombian or Costa Rican courts), while some others frequently explore certain emblematic experiences of ‘weak or ‘failed’ instances of judicial review (this is the case of the courts of Venezuela and Hungary).

The doctoral research I am currently conducting seeks to evaluate whether the Colombian Constitutional Court is, indeed, a robust institution in matters related to the limitation of presidential powers, and aims to explain the factors behind its strength or weakness. It goes without saying that, to attain these goals, it is necessary to have a relatively clear and stable meaning of ‘judicial strength’. Nevertheless, it is interesting to notice how most of the academic literature in the field has paid just a peripheral attention to this issue, and assumes that there is a shared and implied (albeit nonexistent in my view) concept of judicial robustness. In this context, the paper I presented at the symposium is a first approach that attempts to propose a definition of a ‘strong’ court and tries to offer some tools to measure judicial strength. More specifically, the paper claims that judicial strength is composed by three elements: sincerity, compliance and effectiveness.

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Published on November 5, 2018
Author:          Filed under: Analysis

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part IV: The Formalist Resistance to Unconstitutional Constitutional Amendments

[Editor’s Note: This is Part IV in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, Part II is available here, and Part III is available here.]

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

The most fascinating question in the study of modern constitutional change raises something of a paradox: can a constitutional amendment be unconstitutional? We once treated the formal rules of change codified in constitutions as entrenching the necessary and sufficient procedures for amendments but we know this is no longer true as a descriptive reality. Today we can be no more certain that an amendment shall be valid when it satisfies the procedural strictures set out in the formal amendment rules than we can be certain that a law passed by a legislature is constitutional.

Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan—have either asserted or exercised the power to invalidate a constitutional amendment on substantive grounds.[1] Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally-perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule.

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Published on November 3, 2018
Author:          Filed under: Analysis

I-CONnect Symposium–Contemporary Discussions in Constitutional Law–Part III: How Efficient is the Colombian Constitutional Court in Promoting Social Changes?

[Editor’s Note: This is Part III in our Externado symposium on “Contemporary Discussions in Constitutional Law.” The Introduction to the symposium is available here, Part I is available here, and Part II is available here.]

–Andrés Mauricio Gutiérrez Beltrán, Constitutional Law Professor, Universidad Externado de Colombia

Many academics assert that courts are powerful political actors. According to the dominant view, courts have the last word on moral controversies, they introduce new topics on the political agenda, they encourage social activists to stand up for their rights, they convince societies of the ethical value of these demands and they can even decide who becomes president[1] (E.g. Bush v. Gore).

Colombia is no exception. We think that the Colombian Constitutional Court (CCC) is a very powerful agent in Colombian society. Actually, from a certain perspective it is. For example, the Court has prohibited the presidential reelection of one of the most popular politicians in recent history. Despite the evident conservatism in our society, the Court has handed down decisions that contradict religious and moral dogmas. For instance, the Court invalidated provisions that prohibited abortion, euthanasia and the use of drugs. Therefore, it is easy to understand why scholars like David Landau claim that the CCC is today the most powerful court in the world[2]. Well, I am afraid that we should think twice before taking this as a compliment.

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Published on November 3, 2018
Author:          Filed under: Analysis