Blog of the International Journal of Constitutional Law

The Beginning of the End for Vagrancy Laws?

Christopher Roberts, Assistant Professor, Chinese University of Hong Kong.

During the drafting of the European Convention on Human Rights, Sweden suggested an amendment to the provision protecting liberty and security of the person, stipulating that vagrancy and alcohol abuse be recognized as grounds upon which individuals might be detained.[1] This suggestion eventually took form as Article 5(1)(e), still part of the convention today, which indicates that reasonable grounds for the deprivation of liberty include “the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.”

The problems with this amendment are manifold, as should be apparent to human rights-minded readers. For present purposes, it is worth pointing out that in addition to the problematic recognition of the intrinsically vague, status and specifically wealth-based crime of ‘vagrancy’ as a reasonable grounds for detention, the provision follows classical vagrancy laws in equating illness, being of ‘unsound mind,’ alcoholism and poverty.

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Published on July 9, 2021
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The Italian Constitutional Court Self-Presents a Question of Constitutional Legitimacy and Challenges the Legal Framework on the Surname Attribution

Giacomo Giorgini Pignatiello, PhD student in Comparative Public Law, University of Siena.

In February 2019, the Italian Constitutional Court (hereinafter ICC) issued a rather unusual order self-presenting the question on the constitutional legitimacy of the domestic legislation which establishes that, when the consent of both parents is lacking, only the father’s surname gets attributed to the child.

The technique adopted by the ICC in this occasion is very rare. In the 65 years of its activity the ICC issued only a very limited number of this typology of orders.[1] By doing so, the ICC overcame the constitutional principle limiting the scope of the decisions to the questions presented by an ordinary court in the incidental proceeding, which challenged the disposition of the Civil Code impeding parents to give to their child only the mother’s surname despite their mutual consent. Specifically, the Tribunal of Bolzano order maintained that such preclusion violates the right to the child’s personal identity.[2] According to this view, the child would not be entitled to be socially recognised by the mother’s surname and consequently would be deprived of its symbolic value.

The Court considered that to decide the question raised by the ordinary court, the general rule establishing the attribution of the father’s surname when the consent of both parents is lacking has to be set. According to the ICC, this rule would be discriminatory on the ground of sex, since women are not recognised the same rights of men when it comes to the attribution of the surname.[3] For the same reason equality between spouses, specifically protected by art. 29 of the Constitution, would be infringed as well.[4] Several international and supranational legal sources, binding for the Italian legislator by virtue of art. 117, para. 1, of the Constitution, would also be violated according to the ICC.[5] This is particularly the case of the Convention on the Elimination of All Forms of Discrimination against Women, [6] the European Convention of Human Rights (ECHR), [7] and the Charter of Fundamental Rights of the European Union (CFREU). [8]

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Published on July 7, 2021
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Love Jihad Law: Aggravating the Plight of Interfaith Couples

Manisha Aswal, LL.M. Candidate, National Academy of Legal Studies and Research, Hyderabad, India.

India is witnessing a surge in the number of anti-conversion legislations. Following in the footsteps of other Indian States like Uttar Pradesh and Madhya Pradesh, the State of Gujarat (‘the State’) implemented an anti-conversion law called the Gujarat Freedom of Religion (Amendment) Act, 2021 (‘2021 Amendment’) on 15 June 2021. The 2021 Amendment amends the Gujarat Freedom of Religion Act, 2003 (‘Act’) to prohibit religious conversion upon marriage.

The Statement of Objects and Reasons of the 2021 Amendment states “the emerging trend in which women are lured to marriage for the purpose of religious conversion” as one of the reasons for introducing the amendment. The 2021 Amendment seeks to deal with love jihad by criminalizing marriage solemnized for the purpose of conversion. The term “love jihad” is used to describe a right-wing theory which claims that Muslim men use marriage as a way to convert Hindu women to Islam. Before the amendment, the Act prohibited any person from converting the religion of another “by use of force, allurement or by any fraudulent means.”[1] However, the amendment added conversions “by marriage” to the category of prohibited conversions and now prescribes minimum imprisonment of three years extending up to five years to any person who converts the religion of another by marriage.[2] Further, the contravention in respect of a woman or minor attracts a higher punishment of a minimum of four years extending up to seven years.[3]

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Published on July 6, 2021
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What’s New in Public Law

Nakul Nayak, Assistant Professor at Jindal Global Law School, 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

Developments in Constitutional Courts

  1. The South African Constitutional Court convicted former President Jacob Zuma of contempt of court and sentenced him to 15 months’ imprisonment.
  2. Ecuador’s Constitutional Court voted to decriminalize abortion in cases of rape.
  3. South Korea’s Constitutional Court found that an amendment to a legislation that effectively suspended the operations of a ride-hailing service called Tada was constitutional.
  4. The Turkish Constitutional Court accepted an indictment seeking the closure of the Peoples’ Democratic Party (HDP) over the party’s links to the Kurdistan Worker’s Party.
  5. The Supreme Court of India held that the right to food and other basic necessities forms part of the fundamental right to life enshrined in the Constitution.
  6. The Mexican Supreme Court declared unconstitutional the continued prohibition of recreational marijuana use in Mexico, clearing a path to legalization.

In the News

  1. Egypt’s Parliament passed two amendments to a law regulating the Supreme Constitutional Court (SCC). The amendments empower the SCC to review the constitutionality of rulings issued by foreign and international courts and tribunals.
  2. The European Commission has sent a formal notice to Germany for “violation of fundamental principles of EU law” following the German Constitutional Court’s ruling on the European Central Bank scheme.
  3. The European Parliament officially endorsed the Climate Law (also known as the European Green Deal).
  4. The Vatican delivered a protest to Italy’s embassy over a bill criminalizing discriminatory conduct on the basis of sex, gender, sexual orientation, and gender identity. The Vatican believes such criminalization “would have the effect of negatively impacting the freedoms assured to the Catholic Church.”
  5. Sweden’s prime minister, Stefan Löfven, stepped down and asked the parliamentary speaker to find a new government rather than call a snap election.

New Scholarship

  1. Berihun Adugna Gebeye, A Theory of African Constitutionalism, (theorizing the development and transformation of African constitutionalism from precolonial times to the present with the attendant constitutional designs and practices).
  2. Bui Ngoc Son, China’s Comparative Constitution, Vanderbilt Journal of Transnational Law (exploring comparative writings on China’s constitution).
  3. Juan C. Herrera, Las cláusulas durmientes de integración latinoamericana, Orígenes, funciones y opciones para despertarlas (The Dormant Clauses of Latin American Integration: Origins, Functions, and Options for Their Awakening).
  4. William Partlett, Kyrgyzstan’s 2021 Constitution: A Brief Comparative and Historical Analysis, University of Melbourne Legal Studies Research Paper Series No. 944 (arguing that the most important changes in Kyrgyzstan’s new Constitution are structural).
  5. Edoardo Celeste, The Constitutionalisation of the Digital Ecosystem: Lessons from International Law, forthcoming in M. Kettemann, R. Kunz, A. Jr Golia (eds.), International Law and the Internet (examining how international law scholarship offers a theoretical toolbox to understand the multilevel phenomenon of constitutionalisation of the digital ecosystem.)
  6. Sital Kalantry & Agnidipto Tarafdar, Death by Paperwork: Determination of Citizenship and Detention of Alleged Foreigners in Assam, Cornell Legal Studies Research Paper (arguing that numerous facets of Assam’s citizenship verification process contravene international treaties and constitutional law).

Calls for Papers and Announcements

  1. The Institutum Iurisprudentiae, Academia Sinica (IIAS) will be hosting the 9th Asian Constitutional Law Forum on the theme “Asian Constitutionalism in Troubled Times”.  The Forum will be held on December 3-4, 2021 at the IIAS in Taipei, Taiwan. The deadline for abstracts and/or panel proposals is July 20, 2021.
  2. Institute of European and Comparative is hosting a conference on “Good Faith in Public Law” on September 23, 2021. Interested participants may contact the organisers.
  3. The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School, Middlesex University London, and the Max Planck Institute of Comparative Public Law and International Law have invited submissions for a digital symposium on “International Pandemic Lawmaking: Conceptual and Practical Issues”. Deadline for abstracts is 19 July, 2021.
  4. NUS Law and Melbourne Law School are currently hosting the inaugural IACL-AIDC Junior Scholars Forum. Adrienne Stone will deliver the closing keynote on July 6 on the topic Academic Freedom and Democracy: Why Universities need Democracy and Democracies need Universities. Registrations for the keynote are here.
  5. ICON-S Germany will host its first “Book Spot” with Prof. Sigrid Boysen to discuss her new book “Die postkoloniale Konstellation“, a genealogy of international environmental law, with comments by Prof. Pascale Cancik (Osnabrück) and Prof. Markus Krajewski (Erlangen-Nürnberg). The online event will take place on July 13, 18.00 CEST.
  6. The British Association of Comparative Law will host a webinar on The Regulation of Hate Speech Online and its Enforcement in a Comparative Perspective. The webinar will take place on August 31, 2021. Prior registration is required.
  7. The IACL, University of Johannesburg Faculty of Law and the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC) will organize the first World Congress of Constitutional Law in Johannesburg, South Africa, from December 5 – 9, 2022. The theme is ‘Constitutional Transformations’.
  8. Bruno Santos Cunha has started a new bi-weekly column at Portal Migalhas. The column will consider how and when the Brazilian Supreme Court deals with and cites US Supreme Court precedents in its opinions.

Elsewhere Online

  1. Theunis Roux, The Global South and liberal constitutionalism: incommensurable opposites?, AUSPUBLAW.
  2. Ibrahim Shehata, The Utterly Baffling Amendments to the Powers of the Supreme Constitutional Court in Egypt of June 2021, Lexology.
  3. Daniel Holznagel, The Digital Services Act wants you to “sue” Facebook over content decisions in private de facto courts, Verfassungslblog.
  4. Sanaa Alsarghali, The dissolution of the Palestinian Legislative Council by the Palestinian Constitutional Court: a missed opportunity for reform, IACL-AIDC Blog.
  5. The Law and Other Things blog is hosting a symposium on Arvind Elangovan’s book Norms & Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-50 (OUP, 2019).
  6. The Balkinization blog is hosting a symposium on Kurt Lash’s new two volume collection, The Reconstruction Amendments: The Essential Documents (University of Chicago Press, 2021).
  7. Eman M. Rashwan, The Egyptian Supreme Constitutional Court’s interpretation of the Islamic Sharia as a Constitutional Check: Stalling the Radical Islamization of the Egyptian Legal System, IACL-AIDC BLOG
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Published on July 5, 2021
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The Constitutionalisation of Sign language in Slovenia

Neža Šubic, Postdoctoral Researcher at the Department of Law, Maynooth University & Delia Ferri, Professor of Law at the Department of Law, Maynooth University

On 27 May 2021, the Slovene National Assembly (Državni zbor) adopted an act amending the Constitution, inserting in the constitutional text (Ustava Republike Slovenije (URS)) a new provision, Article 62a, which affords constitutional protection to Slovene sign language and guarantees the use of Italian and Hungarian sign languages. The Article follows Article 62 on the ‘Right to Use One’s Language and Script’, and corresponds to Article 11 (providing for the official languages in Slovenia: Slovene, and Italian and Hungarian in the municipalities where Italian and Hungarian national communities reside). It stipulates that:

Free use and development of Slovene sign language shall be guaranteed. In those municipalities where Italian and Hungarian are also official languages, free use of Italian and Hungarian sign language shall be guaranteed. The use of these languages and the status of their users is governed by law. Free use and development of the language of deaf-blind persons is governed by law.

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Published on June 29, 2021
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What’s New in Public Law

Chiara Graziani, Research Fellow in Comparative Public Law, University of Milan-Bicocca (Italy) and Academic Fellow, Bocconi University (Italy)

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

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

Developments in Constitutional Courts

  1. The US Supreme Court  reversed a ruling that allowed several individuals to sue some food corporations over alleged acts of child slavery.
  2. The US Supreme Court upheld the Affordable Care Act by a 7-2 vote.
  3. The Supreme Court of Canada upheld the constitutionality of carbon tax participation requirements for provinces.
  4. The Romanian Constitutional Court published the reasoning of a recent decision holding that the Special Section for Magistrates can only be dismantled by Parliament, and not by ordinary courts.
  5. The Turkish Constitutional Court will hear an application asking it to dissolve the pro-Kurdish party on terror-related charges.
  6. The Egyptian Court of Cassation upheld death penalty for three leading members of the Muslim Brotherhood, classified as a terrorist group by the Egyptian government.

In the News

  1. Amnesty International and Human Rights Watch called for an investigation into activities of the new Iranian President, Ebrahim Raisi, alleging crimes against humanity and claiming that states should exercise universal jurisdiction.
  2. Japan lifted the state of emergency in some of its prefectures, in preparation for the Tokyo Olympic Games.
  3. A new gambling bill has been introduced in Norway, imposing tighter restrictions on unlicensed international betting companies.
  4. The European Data Protection Board and the European Data Protection Supervisor issued a joint opinion urging that planned EU regulation on artificial intelligence include a ban on biometric identification in public spaces.
  5. The Spanish government pardoned nine jailed Catalan leaders.
  6. The Swiss Federal Administrative Court approved the extension of the residence permit for a transgender Mauritian national for important personal reasons.

New Scholarship

  1. Heejin Kim, Global Export Controls of Cyber Surveillance Technology and the Disrupted Triangular Dialogue, 70 International and Comparative Law Quarterly (2021) (addressing the issue of the proliferation of cyber surveillance technology as a global policy problem).
  2. András L. Pap, Academic Freedom: A Test and Tool for Illiberalism, Neoliberalism, and Liberal Democracy, 26 Brown Journal of World Affairs (2021) (investigating the status and role of academic freedom in (neo)liberal democracies and illiberal regimes).
  3. Guillaume Tusseau, Contentieux constitutionnel comparé. Une introduction critique au droit processuel constitutionnel (Librairie générale de droit et de jurisprudence, Lextenso, 2021) (addressing the history of constitutional adjudication, the methodology to be applied in comparative studies of constitutional courts, constitutional complaint procedures as well as many other topics related to constitutional adjudication).
  4. John F. Kowal & Wilfred U. Codrington III, The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union (forthcoming September 2021) (telling the “233-year story of how the American people have taken an imperfect constitution—the product of compromises and an artifact of its time—and made it more democratic”).
  5. Arianna Vedaschi, Kim Lane Scheppele (eds.), 9/11 and the Rise of Global Anti-Terrorism Law. How the UN Security Council Rules the World (Cambridge University Press, forthcoming) (giving a picture of the complex and evolving interaction between the international, regional and domestic levels in framing counter-terrorism law and policies).
  6. Cornelia Weiss, Creating UNSCR 1325: Women who served as initiators, drafters, and strategists, in Rebecca Adami, Dan Plesch (eds.), Women and the UN. A New History of Women’s International Human Rights (Routledge, 2022) (highlighting women from both inside and outside of the United Nations and examining how, in a Security Council composed of almost all men, the first UN Security Council resolution on Women and Peace and Security, UNSCR 1325, was adopted).

Calls for Papers and Announcements

  1. A webinar on “Hong Kong in China, or Hybridity and its Discontents” is being organized at Bocconi University and will be held on June 29, 2021, at 1 PM CET. The event can be accessed here.
  2. The DI.SEA.DE Department of the University of Milan-Bicocca, together with the Department of Legal Studies of Bocconi University, under the auspices of the Association “Diritto Pubblico Comparato ed Europeo” and of the law review “Diritto Pubblico Comparato ed Europeo”, are organizing a webinar on “Crisi pandemica o crisi della democrazia? Il principio dello Stato di diritto alla prova dell’emergenza sanitaria” (in Italian). The event will be held on June 30, 2021, at 6 PM CET. The webinar can be accessed here (password “uepandemia”).
  3. The International Law Department and the Gender Centre of the Graduate Institute of International and Development Studies in Geneva invites contributions for the Virtual Queer Workshop, “International Law Dis/Oriented: Queer Legacies and Queer Futures”, to be held from September 27 to October 1, 2021. Contributions will be accepted until July 2, 2021 at 11.59 PM CET.
  4. Submissions are welcome for the Fourth International Symposium of the Indonesian Constitutional Court, to be held on September 14-15, 2021.
  5. The DISSECT research project is organizing a webinar on “Evidence and Proof in Proceedings Before the European Court of Human Rights”, to be held on July 5, 2021, at 9:30 AM CET. Those interested should email, shortly motivating why they would like to attend the webinar. 
  6. Papers are invited for two events on judicial education and on judicial conduct in Ireland, to be held online in September and October 2021. The project is organized by Dr. Laura Cahillane (University of Limerick) and Dr. Rónán Kennedy (NUI Galway), funded by the Irish Research Council and undertaken in conjunction with the Irish Council for Civil Liberties. The deadline for submissions is August 20, 2021.
  7. The Milan Law Review (MLR) welcomes the submission of articles on topics belonging to any area of legal scholarship of public international law, private international law and European Union law.  More information is available on the website. The next deadline for submitting papers is October 31, 2021.
  8. The World Congress of International Law will be held in Johannesburg on December 5-9, 2022. More information can be found here.

Elsewhere Online

  1. Pablo G. Hidalgo, Fiona de Londras and Daniella Lock, Parliamentary Scrutiny of Extending Emergency Measures in the two Scottish Coronavirus Acts: On the Question of Timing, UKCLA Blog
  2. Priyanka Jain, No Collective Redress against Foreign Companies in Cases of Purely Financial Damage: Case C-709/19 VEB v. British Petroleum, European Law Blog
  3. Haimo Li, The Intellectual Origin of the US Constitution Article 1, Section 9, Clause 3: An Important Contribution from Maryland, Journal of the American Revolution – Constitutional Debate, Critical Thinking, Law
  4. Ulisses Levy Silvério dos Reis, Rafael Lamera Giesta Cabral, Military Justice, Journalism and Free Speech in Brazil, Verfassungsblog
  5. Centro de Estudios de Seguridad and Tirant Editorial, Democracia y Seguridad. Respuestas para Avanzar en el Sistema Público (ed. J.J. Fernández Rodríguez). Book launch, YouTube
  6. David Andrés Viñas, UN Global Counter Terrorism Strategy and Humanitarian Action: A Case for Saving Lives, Just Security
  7. Lorna Woods, Big Brother Watch v UK: the ECtHR Grand Chamber rules on mass surveillance, EU Law Analysis
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Published on June 28, 2021
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Paternalist Constitutionalism and the Emergence of Sovereign Cultural Identity: The Case of Russia

Angela Di Gregorio, Full Professor of Comparative Public Law, University of Milan, Italy

Now that the path of constitutional reform in Russia has reached its conclusion, with the adoption of almost all the implementing measures of Constitutional Amendment Law of the 14th March 2020, a more thoughtful reflection on the rationale of this complex constitutional restructuring is needed, taking into account long-term political and cultural phenomena.

The complex path of transformation, only to all appearances rapid and limited in scope despite the heading of the Amendment Law (“On improving the regulation of individual issues of organisation and functioning of public authority”) cannot be understood without an investigation into its deepest cultural motivations and the constitutional spirit of Russia. This is a country with a complex genetic identity where Western influences, including European constitutional models, are mixed with deep-rooted indigenous elements, the result of the complex history and geography of the country. Both the long-term constitutional development which we find confirmed in the Great Putin’s Reform along a trajectory which dates back centuries, and the complex management and architecture of power, are conditioned by this dual nature. The balance of the different components has varied over time and, in recent years, the greatest degree of emphasis appears to have been placed on the ‘indigenous’ elements, as shown by the Great Putin’s Reform, where the elements of conservation emerge more than those of innovation. It was a matter of unveiling the deepest and most traditional soul of the ‘new’ Russia, that could not fail to be steeped in its secular political traditions, notwithstanding the important transformations that have taken place in the post-Soviet period.

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Published on June 27, 2021
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ICON Volume 19, Issue 1: Editorial

We invited Marcela Prieto and Sergio Verdugo, I•CON’s Associate Editors, to write a Guest Editorial.

Understanding Chile’s constitution-making procedure*

For good or bad, Latin America has seen several constitution-making processes in the past decades, including the cases of Brazil (1988), Colombia (1991), Perú (1993), Ecuador (1998 and again in 2008), Venezuela (1999), and Bolivia (2009). It is now Chile’s turn.

In October 2020, close to 80% of Chileans voted in favor of initiating a constitution-making process through a Constitutional Convention. The Convention’s members will be elected in May 2021. The pressure for constitutional change was largely the result of the 2019 mass protests, which were primarily demanding social rights expansions across the country. In response to this pressure, political parties approved a multi-partisan agreement (the “Agreement”) aimed at initiating a process to replace the current Constitution.[1]

Chile’s constitution-making process can be analyzed in various ways. We argue that, as it was designed in the Agreement, Chile’s constitution-making process can be understood from the perspective of “aversive constitutionalism.” Aversive constitutionalism focuses on “the negative models that are prominent in constitution builders’ minds.”[2] Those models later operate as “building blocks of a new constitutional order,” thus incorporating a “sense of rejection of a particular constitutional possibility.”[3] Using this perspective, the Chilean constitution-making process can be understood as showing a dual aversion: Pinochet’s constitutional legacy and the Bolivarian prescriptions of constitution-making.

The rejection of Pinochet’s constitutional model is not an obvious choice. After all, the current Constitution—originally imposed by the Pinochet regime in 1980—has been amended several times, and Chile has a competitive—though polarized and gridlocked—democratic regime. However, public opinion and politicians associate Pinochet’s Constitution with legislative inaction in areas Chileans care about, such as healthcare, social security, and education. Although there is no academic consensus as to the gridlock’s causes, many Chileans blame the Constitution. In any case, it is true that crucial issues associated to social and economic rights are still partly dominated by neoliberal norms that were part of the dictatorship’s original design.

The rejection of Pinochet’s Constitution also has a symbolic dimension, whereby Chile can be seen as consolidating its transition to democracy through a break with its past constitutional order. Unlike other countries, such as Spain, South Africa, and Brazil, where the transition included a total constitutional replacement, Chile’s post-authoritarian system maintained an amended version of the original constitutional text imposed by the dictatorship. The rejection of Pinochet’s constitutional model involves a desire for social transformation, the need to participate in a democratic—and not imposed—constitution-making process, and a symbolic rejection of the authoritarian legacy.

The Bolivarian approach to constitution-making is Chile’s second negative model. This model has inspired the constitution-makers of Venezuela (1999), Ecuador (2008), and Bolivia (2009), and it combines a form of transformative constitutionalism (an idea originated in relation to South Africa) with a particular constituent narrative. That narrative involves the recognition of a strong social rights model, the existence of a sovereign constituent assembly that produces norms that weaken limits on political power, a post-liberal and radical approach to democracy, and a revolutionary discourse emphasizing the (unconstrained) power of the “people” as the legitimizing driver of the constitution-making process.

The rejection of this model can be identified in the Chilean political debates—as we show in our essay published in this issue—and in many features of the Agreement. The Agreement emphasizes institutional continuity and creates a highly regulated process that imposes several procedural and substantive limitations on the Constitutional Convention. Most notably, the rules governing the Convention promote consensus-building and multi-partisan compromises through a super-majority decision-making rule, a judicial remedy in case the procedures are infringed, and an electoral system that is likely to secure a fragmented and politically diverse Convention—a feature that might prevent the rise of a dominant party. These norms are in tension with the constituent power narrative that Bolivarian constitution-makers typically advocate.

Chile’s success in effectively rejecting these two negative models will depend on whether the Convention finds a path that can accommodate the dual aversion. In order to do so, Chile’s Convention needs to design a more responsive political system that can put an end to legislative inaction in critical areas that require social reform and can provide for a strongly symbolical rejection of the Pinochet legacy. It also needs to avoid a populist narrative that may undermine the competitiveness of the democratic order, thus rejecting the Bolivarian approach. And it must do so while producing a constitution that can be accepted by both public opinion and partisan elites. This is no easy task.

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Published on June 25, 2021
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The “Metaphor of Waves” in Latin America: A Fragmentary Reality?

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

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

Comparative constitutional law has a particular taste for unraveling constitutional waves. Jon Elster, in his Forces and Mechanisms in the Constitution-Making Process, identifies seven waves from the late eighteenth century to the end of the twentieth century.[1] Tom Ginsburg, when examining the global spread of constitutional review, points out three waves that led to the most current configuration of constitutional review worldwide.[2]  Doreen Lustig and J. H. H. Weiler, drawing from Mauro Cappeletti’s Judicial Review in the Contemporary World,[3]  wrote that they would pay homage to that great author by exploring the recent developments of constitutional law through the “metaphor of waves.”[4]  It is a fascinating discussion that connects cross-national historical developments with their respective constitutional designs, as if both environmental and design factors walk hand in hand across various countries that are connected by some common ground. Comparative studies have already shown the correlation between geographic diffusion and constitutional change, leading neighboring countries to follow certain patterns that could be framed as waves.[5]  Also important, regime changes[6] and political crises[7] have a strong impact on constitutional change, so the waves that take place in the political realm may also imply waves in constitutionalism. In Latin America, this correlation seems quite strong. But is it really? And what about the recent political and constitutional events in the region? Could they be framed in the “metaphor of waves”?

One of the most fascinating and impactful books on Latin American constitutionalism is Roberto Gargarella’s Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution.[8] It is impressive how Gargarella connects the diverse and highly conflictive historical narratives of a region with the rise of the rich – and sometimes experimental – Latin American constitutionalism. It is still a largely overlooked constitutionalism in comparative constitutional studies despite those two hundred years of experiments, practices, crises, populisms, and – why not? –  political and constitutional successes. The coincidence of movements for independence in the early nineteenth century, when modern constitutionalism was still in its infancy, furthered a series of extremely interesting constitutional projects and designs, even more so when applied in a region with so many social disparities and oligarchical control over institutions. It is the moment of rebellions (if not revolutions) challenging preservationist movements, of radicals, liberals and conservatives negotiating with each other. It is also the moment when Latin American constitutionalism would replicate, with various adaptations, some political and constitutional designs from the neighboring North, such as presidentialism, federalism, and, a bit later, the concrete or diffuse system of judicial review.

Gargarella concentrates his analysis on two central features of Latin American constitutionalism that gained strength over those two hundred years. The first feature, largely inspired by the lessons of his fellow Argentinean Professor Carlos Santiago Nino,[9] is that presidentialism in Latin America means hyper-presidentialism and that this is the “engine room of the constitution;” the second is the vast presence of economic and social rights in the most recent Latin American constitutions, but which are more promise than reality. His very interesting thesis is straightforward: “the institutional system had a significant responsibility in the consolidation of the political, economic, and social system, which remains, after 200 years of independence, profoundly unequal.”[10] The engine room of the Constitution – and particularly hyper-presidentialism – is intimately connected to the perseverance of inequality in the region.

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Published on June 23, 2021
Author:          Filed under: Analysis

2021 I•CON Prize

We are very pleased to announce the winner of the 2021 I•CON Prize for the most outstanding article published in volume 18 of the International Journal of Constitutional Law. This year the I•CON Editors in Chief in consultation with the Advisory Board have awarded the Prize to Tamar Hostovsky Brandes, for her article, “The Diminishing Status of International Law in the Decisions of the Israeli Supreme Court concerning the Occupied Territories”, published in our 18:3 issue.

The selection process was particularly difficult this year, given the excellent quality of articles we publish. In this light, the Editors gave a Special Mention award to Andrea Scoseria Katz for her article, “Taming the Prince: Bringing Presidential Emergency Powers under Law in Colombia”, published in I•CON 18:4.

Our warmest congratulations go to these authors for their outstanding contributions to scholarship in the field of public law.

GdeB and JHHW

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Published on June 22, 2021
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