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I·CONnect

Blog of the International Journal of Constitutional Law

Dissenting from the Venice Commission on Dissenting Opinions

Maxime Saint-Hilaire, Université de Sherbrooke, Canada & Léonid Sirota, AUT University, New Zealand

The topic of separate – concurring or dissenting – judicial opinions is sure to generate attention, and some controversy. There is a substantial academic literature on the subject, to which judges have often contributed, but discussion of judicial expressions of disagreement with colleagues and disapproval of the results they reach or their reasoning attracts wider notice. Both of us recently helped organize such public conversations ― in one case as a dialogue with Justice Côté, of the Supreme Court of Canada (where she is a noted, if not a notorious, dissenter) and, in the other, as part of a symposium on the Double Aspect blog involving Canadian academics and practitioners. Here, we would like to comment on another discussion of separate opinions, this one by the European Commission for Democracy through Law, a.k.a. the Venice Commission.

Common law jurisdictions have a long history of accepting separate opinions. While Chief Justices occasionally lament them – and some have been reputed to strong-arm colleagues into keeping their objections to majority decisions to themselves – formal prohibitions have been quite exceptional. The Judicial Committee of the Privy Council long gave ostensibly unanimous opinions, on the principle that advice to the Crown – which its decisions formally are – must not be divided. While dissenting opinions are now permitted, concurring ones are not. Somewhat similarly, the Irish Constitution expressly prohibits the publication, or indeed the disclosure of the existence, of concurring or dissenting opinions on questions on the constitutionality of bills referred to the Supreme Court by the President.

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Published on March 21, 2020
Author:          Filed under: Analysis
 

COVID-19 and the Basic Law: On the (Un)suitability of the German Constitutional “Immune System”

Pierre Thielbörger, Professor, and Benedikt Behlert, Research Associate and PhD student, both at Institute for the International Law of Peace and Armed Conflict (IFHV); Ruhr-Universität Bochum 

[Editor’s Note: This is a translation of a German-language post from Verfassungsblog, which can be found here. Translation by the authors, who thank Vanessa Bliecke and Rouven Diekjobst for their help.]

With the COVID-19 epidemic, Germany faces a unique threat the extent and duration of which can currently not be estimated. To this end, the German state has taken measures which – in the words of Chancellor Angela Merkel – “have never been taken before”: gatherings are being banned, shops, restaurants, bars and clubs are shut down, borders are being closed and the organizational separation of law enforcement and the armed forces is being overturned by extensive domestic deployment of the armed forces (Bundeswehr). These measures raise questions about the rules governing constitutional emergencies. This article seeks to contribute to the ongoing discussion, focusing on the fitness of the German constitution (the Basic Law) to address the current epidemic.

After a short overview of the respective regulations in the Basic Law, this article considers two subject areas which are of particular relevance in the context of the COVID-19 epidemic. On the one hand, questions regarding the law of state organization arise, in particular those regarding (the allocation of) competences. On the other hand, fundamental rights are currently experiencing drastic restrictions. Accordingly, there is a need to reflect on how these rights are protected in times of crisis. In assessing both dimensions, the contribution comes to the conclusion that the emergency regulations of the Basic Law are unclear, incomplete and in need of revision. The lack of provisions adequately regulating ‘internal’ emergencies and the absence of an explicit emergency constitutional framework may be a serious impediment – if not to fighting the crisis – then at least to resuming ‘normality’ once the COVID-19 epidemic is reduced to manageable levels.

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Published on March 20, 2020
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A Country with Two Rival Presidents: Is it Time for Afghanistan to Formally Move to Consociationalism?


–Shamshad Pasarlay, Herat University School of Law and Political Science. Email: shamshad.bahar[at]yahoo.com

One of the daunting puzzles for scholars interested in constitutional design is how to craft a democratic constitution for a deeply divided society.[1] The challenge is to form a system of government in which all religious, ethnic and linguistic groups of a deeply divided polity are adequately represented such that they accept their concerns are being addressed and their rights protected. Only then, the mutually distrustful ethno-religious communities will cooperate and respect governmental decisions as legitimate.

Among scholars of divided societies, a debate has emerged. On the one side are the advocates of “consociationalism”; and on the other side are the champions of “incentivism.”[2]

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Published on March 18, 2020
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Defining Australia’s Constitutional Community–The High Court’s Landmark Decision in Love v Commonwealth of Australia


–Julian R Murphy, PhD student, University of Melbourne, School of Law

The High Court of Australia recently handed down its decision in Love v Commonwealth of Australia. The case concerned the so-called “aliens power” in the Australian Constitution and whether it could be used to deport an Aboriginal Australian who was born overseas and had not applied for Australian citizenship. In Australia, the decision has ignited a debate about judicial activism, constitutional interpretation and the unique place of Aboriginal people in the constitutional community.

Outside of Australia, the decision will be of special interest to Canadian lawyers because s 91(25) of Canada’s Constitution Act 1867 is identical to the Australian “aliens power”. Comparativists will also note the Australian High Court’s heavy citation of foreign domestic case law and scholarship, as well as numerous international law sources on the rights of colonised indigenous peoples.

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Published on March 17, 2020
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What’s New in Public Law


Boldizsár-Szentgáli Tóth, Research Fellow at the Hungarian Academy of Sciences and the Etvos Loránd University

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of South Africa decided a case about the compensation of domestic workers.
  2. The Constitutional Court of Romania deferred early elections scenario, in case of the inability of the designated Prime Minister to form a government.
  3. The Constitutional Court of Kosovo decided a major case about right to property, and right to a fair trial.
  4. The Supreme Court of Canada ruled that mining company Nevsun can be sued in Canada for alleged human rights violations abroad.
  5. The European Court of Human Rights declared inadmissible the application in the case of Platini v. Switzerland.
  6. The Federal Constitutional Court of Germany ruled that the Removal of civil servant status by the administrative act is permissible under constitutional law.

In the News

  1. The Constitution of Russia has been amended to extend the presidential term limit of Vladimir Putin. The amendment is subject to the approval of the Constitutional Court of Russia.
  2. The Parliament of Myanmar voted against proposed amendments to the 2008 Constitution.
  3. Virginia lawmakers passed a constitutional amendment establishing a commission to reshape the borders of electoral districts. This constitutional amendment is subject to a referendum, which is scheduled to take place in November 2020.
  4. A proposal to amend the Constitution of Alabama was rejected by a referendum on March 3 2020.
  5. The first draft of the new Constitution of Algeria was published on 12th March 2020.
  6. The 4th General Assembly of the Arab Electoral Management Bodies took place in Nouakchott, Mauritania 4-6 March 2020.
  7. The Parliament of South Africa discussed a proposal to amend Section 25 of the Constitution.
  8. A constitutional amendment proposal was submitted in Ohio to legalize recreational marijuana.

New Scholarship

  1. Lorne Neudorf, Strengthening the Parliamentary Scrutiny of Delegated Legislation: Lessons From Australia, Canadian Parliamentary Review (2020) (examining the design of the Australian scrutiny committee and its power of inquiry)
  2. Guillaume Tusseau (ed.), Debating Legal Pluralism and Constitutionalism: New Trajectories for Legal Theory in the Global Age (2020) (presenting a comparative and theoretical approach to global constitutionalism and pluralism)
  3. Franco Peirone, May the Law Rule the Past? What if the ECtHR had decided Berlusconi’s case (Italian Journal of Public Law, (2019) Italian Journal of Public Law (assessing the compatibility of the Italian legislative prohibition for convicted individuals from sitting in Parliament with case-law of the European Court of Human Rights)
  4. Barbara Havelková and Mathias Möschel, Anti-Discrimination Law in Civil Law Jurisdictions (2020) (exploring the evolution of anti-discrimination law in European civil law jurisdictions)
  5. Vijayashri Sripati, Constitution-Making under UN Auspices (2020) (critically examining the assistance of the United Nations, and its predecessor, in constitution-making projects around the world)

Calls for Papers and Announcements

  1. Melbourne Law School invites application for a postdoctoral fellowship in Comparative Constitutional Law, starting from February 2021, with a full-time, fixed-term contract for one year. The deadline for submissions is April 19, 2020.
  2. The International Law and Human Rights Unit, part of the School of Law and Social Justice at the University of Liverpool, invites postgraduate research students to its 4th Annual Postgraduate Conference in International Law and Human Rights. The conference will take place on June 11-12, 2020. The deadline for submission is March 13, 2020.
  3. Utrecht University’s Montaigne Centre for the Rule of Law and Administration of Justice, together with the Netherlands Institute of Human Rights (SIM), invites submissions for a conference on “Rule of Law from Below,” which will take place on October 29, 2020. The deadline for submission is March 15, 2020.
  4. Ghent University’s Human Right Centre invites submission for a conference on “EU Convention on Human Rights Turns 70: Taking Stock, Thinking Forward,” to be held on November 18-20, 2020. The deadline for submissions is April 15, 2020.
  5. The Center for Gender in Global Context (GenCen), Department of History at Michigan State University, and the Institute for Research on Women and Gender (IRWG) at the University of Michigan invite submissions for a conference on “The Gender, Women’s Suffrage, and Political Power: Past, Present, and Future (GWSPP),” to be held on November 19-21, 2020. The deadline for submission is March 27, 2020.
  6. The Arab Association of Constitutional Lawyers invites submission for an international conference on “The Status of Legal Education in the Arab World,” to be held in Tunisia, on June 6-7, 2020. The deadline for submissions is March 31, 2020.
  7. Canadian Review for American Studies invites submissions of review articles. The deadline for submissions is September 1, 2020.

Elsewhere Online

  1. Arianna Vedaschi and Chiara Graziani, Coronavirus, Health Emergencies and Public Law Issues, Verfassungsblog
  2. Verfassungsblog published a series of blog posts on “Constitutions of Value”
  3. Csaba Győri, Fighting Prison Overcrowding with Penal Populism – First Victim: the Rule of Law, Verfassungsblog
  4. Suhrith Parthasarathy, The Supreme Court’s Cryptocurrency Judgment, Indian Constitutional Law and Philosophy
  5. Janine Silga, The Humanitarian Crisis at the Greek-Turkish border: The Result of an ‘Explosive’ Mix, Brexit Institute
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Published on March 16, 2020
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COVID-19 Pandemic, Social Distancing, and the Courts: Notes from Hong Kong


P. Y. Lo, LLB (Lond.), Ph D (HKU), Barrister-at-law, Gilt Chambers, Hong Kong

COVID-19 has become a pandemic. To contain and delay the spread of this new strain of the coronavirus, personal hygiene (such as regular handwashing with soap and water) and social distancing (such as avoiding gatherings of large groups of people and working from home) have been recommended by public health experts. Governments have tried more aggressive measures, such as closing of borders, quarantine of international passengers, declaration of emergencies, and lockdown of cities, regions and even the whole country. This Post focuses on the experience of the General Adjournment Period (GAP) of the courts of Hong Kong and raises several relevant issues.

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Published on March 14, 2020
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Automation of Public Services and Digital Exclusion

Sofia Ranchordas, University of Groningen

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

If you are reading this blogpost, you most certainly have the required digital skills to engage with your national or local digital government services. You can fill in online your tax return forms, use social media to communicate with local authorities, help your children apply for a new school or university, and challenge an automated administrative decision (e.g., a speeding fine). However, for millions of citizens throughout the world, engaging with digital government is far from obvious. This blogpost discusses the problems of digital inequality and digital exclusion in the context of the digitization and automation of public services.

Drawing on a review of interdisciplinary literature, I identify two causes of digital inequality: the emergence of a new and complex form of digital divide and limited digital literacy. While both topics have been thoroughly discussed in the field of media studies, the legal implications of digital inequality remain underestimated by lawyers and policymakers. At a time when several governments (e.g., the Netherlands, Estonia) are trying to eliminate traditional offline services or shift to online-only or online-by-default, it is important to inquire whether all citizens will be able to exercise their rights adequately in a digital context. Moreover, if the adequate exercise of citizens’ rights is put at stake due to the complexity of digital government, it is worth inquiring whether all areas of government should always be online by default and whether citizens should have the right to meaningful human contact when interacting with their national or local public authorities, as recently suggested by the Dutch Council of State.

In this blogpost, I also introduce two solutions to the problem of digital inequality: a broader implementation of a trial-and-error approach to digital government (e.g., the right to make a mistake) and the expansion of experiential learning programs on technology and digital literacy initiatives for both children and adults.

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Published on March 11, 2020
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The New Presidential Regime in Brazil: Constitutional Dismemberment and the Prospects of a Crisis

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Latin America is essentially presidential. All eighteen Latin American countries[1] adopt presidentialism as their system of government, but, comparatively to the U.S. Constitution’s “archetype,” Latin American presidents are normally granted expanded lawmaking and budgetary powers.[2] Brazil follows such a pattern, but it has some particularities: first, its political party system is certainly the most fragmented in the region (and possibly in the world), so it fundamentally hinges on stable political coalitions for governability; second, it has long courted parliamentarism and, in fact, was the only country in the region where it was adopted for a long period[3] (a monarchical parliamentarism between 1840 and 1889, and then a republican one between 1961 and 1963). Both are connected: parliamentarism, though never again adopted, is normally revived in contexts of political crisis, which occurs when the relationship between Presidents and Congress are in serious trouble. Currently, the contentious relationship between President Jair Bolsonaro and Congress has sparked a new presidential paradigm: a President with limited lawmaking and, mainly, budgetary powers. It is certainly not parliamentarism – even though some call it “soft parliamentarism” -, but it is clearly not the presidentialism that was designed in the 1988 Constitution. Is Brazil enduring a sort of “constitutional dismemberment” in its system of government?

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Published on March 10, 2020
Author:          Filed under: Analysis
 

Five Questions with Deepa Das Acevedo


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

In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about scholarship.

This edition of “Five Questions” features a short video interview with Deepa Das Acevedo, Assistant Professor of Law at the University of Alabama. A legal anthropologist interested in Indian constitutional law and democracy, her book-in-progress on The Battle for Sabarimala (forthcoming, OUP) explores religion-state relations in India through the lens of temple governance.

Asked to identify her favorite paper among the many she has authored, she selected “Temples, Courts, and Dynamic Equilibrium in the Indian Constitution,” available here and published in the American Journal of Comparative Law.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on March 10, 2020
Author:          Filed under: Reviews
 

What’s New in Public Law


Vini Singh, Assistant Professor & Doctoral Research Scholar, National Law University Jodhpur, 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 contact.iconnect@gmail.com.

Developments in Constitutional Courts

  1. The Colombian Constitutional Court ruled against legalizing abortion in the first sixteen weeks of pregnancy.
  2. The Supreme Court of the UK held that a refugee can pursue a claim for damages against the government for illegal detention.
  3. The Supreme Court of Canada ruled that mining company Nevsun can be sued in Canada for alleged human rights violations abroad
  4. The Ukraine Constitutional Court declared that the abolition of the old Supreme Court was unconstitutional.
  5. The German Constitutional Court upheld the right to self – determined death and declared the ban on professionally assisted suicide as unconstitutional.
  6. The Constitutional Court of Germany upheld a ban on wearing a headscarf for legal trainees.

In the News

  1. The President of Argentina proposes legalizing abortion.
  2. U.S. Supreme Court takes up the most high profile abortion case in decades.
  3. Guinea’s President postpones vote on a new constitution and parliamentary elections over international concerns.
  4. United Nations Commissioner on Human Rights files intervention application in the Supreme Court of India on the Citizenship Amendment Act.
  5. Prime Minister Benjamin Netanyahu claims the biggest win in Israel elections.
  6. Spain plans “only yes means yes” rape law.
  7. President Putin proposes amendments to the Russian Constitution that will proclaim Russian’s faith in God and define marriage as a union between a man and woman.

New Scholarship

  1. Hedvig Bernitz and Victoria Enkvist, Freedom of Religion: An Ambiguous Right in the Contemporary European Legal Order (2020) (examining different perspectives on the concept of freedom of religion in Europe against the background of the European Convention on Human Rights, the EU Charter of Fundamental Rights and other international human rights treaties)
  2. Rachel Cahill-O’Callaghan, Values in the Supreme Court: Decisions, Division and Diversity (2020) (empirically examining the significance of values in the decision-making of the UK Supreme Court)
  3. Abhinav Chandrachud, Secularism and the Citizenship Amendment Act (2020) (examining provisions of the Citizenship Amendment Act against the backdrop of the citizenship provisions of the Indian Constitution)
  4. Giacomo Delledone, Giuseppe Martinico, Matteo Monti and Fabio Pacini, Italian Populism and Constitutional Law: Strategies, Conflicts and Dilemmas, (2020) (exploring the relationship between constitutionalism and populism in the Italian context)
  5. Jill I. Goldenziel, Law as a Battlefield: The U.S., China and Global Escalation of Lawfare, (2020) (arguing that the US needs to develop a lawfare strategy to combat its adversaries.)
  6. Salman Khurshid, Sidharth Luthra, Lokendra Malik and Shruti Bedi, Judicial Review: Process, Powers and Problems (Essays in the Honour of Upendra Baxi), (2020) (demonstrating the different facets of judicial review based on the vast area of comparative constitutional law)
  7. Karl M. Manheim and Lyric Kaplan, Artificial Intelligence: Risks to Privacy and Democracy, 21 Yale Journal of Law & Technology (2019) (arguing for greater attention to risks and impacts of AI on economic and political decisions at the national level, with attendant regulation)

Calls for papers and announcements

  1. Centre for Socio-Legal Studies, at the University of Oxford, invites application for the position of an Associate Professor. The deadline for applications is April 2, 2020.
  2. Nordic Journal of European Law invites submissions, including articles, case notes and book reviews, related to issues closely connected to European law developments for inclusion in the next issue. The deadline for submissions is April 30, 2020.
  3. Lund University invites applications for two general PhD positions and one PhD position with the Quantum Law project, which explores the legal implications of quantum computing. The deadline for applications for all three openings is on March 18, 2020.
  4. The School of Advanced Studies, University of London invites submissions for its workshop “Facing the Anthropocene in Latin America: Stories, Agencies and Institutions,” to be held on April 28, 2020. The deadline for the submission of abstracts is Monday, March 9, 2020.
  5. The Lund University, Sweden invites submission for a conference on “Law and Digital Society: Reimagining the Futures,” to be held on August 24-26, 2020. The deadline for the submission of papers and proposals is March 15, 2020.
  6. The Graduate Law Students Association, McGill University’s Faculty of Law, welcomes submissions for the 13th Annual McGill Graduate Law Conference on the theme “Law Actually: Intimacy and Trust,” to be held on May 7-8, 2020. The deadline for submissions has been extended until March 10, 2020.
  7. The LVI 2020: Legal Information and Access to Justice, to e held on September 15-16, 2020, will be hosted by the Institute of Advanced Legal studies, University of London and BAILII.
  8. Registrations are open for the ACS Conference on the topic “Reviving Democratic Constitutionalism,” to be held March 20-21, 2020.
  9. The National University of Singapore invites applications for the position of Assistant Professor in Media Law & Policy. Applications may be submitted by September 19, 2020.
  10. The Central European University will conduct a summer course on Constitution Building in Africa from June 29, 2020, to July 8, 2020. The deadline for applications has been extended until March 15, 2020.

Elsewhere Online

  1. Gabriel Armas Cardona, Context Matters: The Rule of Law and Armenia’s Referendum to Remove Constitutional Court Judges, Verfassungsblog
  2. Leonid Sirota, A Matter of Unwritten Principle, Double Aspect
  3. National Constitution Center, Dred Scott Decision Still Resonates Today, Constitution Daily
  4. Jim Gallagher, The Scottish Referendum Argument, Centre for Constitutional Change
  5. Gautam Bhatia, Proving Citizenship: Lessons from the African Court on Human and Peoples’ Rights, Indian Constitutional Law and Philosophy
  6. Simon Drugda, Behind the Scenes of Brexit: An Inside Look on the Work of UK Supreme Court, DCU Brexit Institute
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Published on March 9, 2020
Author:          Filed under: Developments