magnify

I·CONnect

Blog of the International Journal of Constitutional Law

Special Undergraduate Series–The Rot Runs Deeper: Citizenship at Odds with Religion


Special Series: Perspectives from Undergraduate Law Students
LL.B. Student Contribution


–Anant Sangal, IV Year, B.A., LL.B. (Hons.), National Law University, Delhi

In the first half of December 2019, the Indian Parliament passed a discriminatory legislation, which provides citizenship to a class of people on the basis of their religion. According to the Citizenship (Amendment) Act, 2019 (‘Amendment’), people belonging to the Hindu, Sikh, Christian, Jain, Buddhist, and Parsee community and who came from India’s three neighboring countries (Bangladesh, Afghanistan, and Pakistan) before 31st December 2014 will be eligible for Indian citizenship. While the Statement of Objects and Reasons appended to the bill argues that people belonging to only these religions are persecuted on the basis of their religion in these three Islamic-theocratic nations, however, no such reference is available in the actual text of the legislation.

With the solitary exclusion of the Muslim community from the scope of the legislation, the challenges posed to the constitutionality of the legislation are many. In this post, however, I will limit my argument to only two such limitations the legislation suggests.

Read the rest of this entry…
Print Friendly
Published on April 12, 2020
Author:          Filed under: Analysis
 

The Collision between Bolsonaro and the Sovereignty of Science: The Courts Step In

João Vitor Cardoso, University of Chile Faculty of Law[1]

Introduction

On Saturday, March 28, a federal court in Rio de Janeiro banned the Brazilian government from disseminating propaganda against confinement measures aimed at controlling the coronavirus pandemic. The federal judge gave the government 24 hours to publish an official statement explaining that its “Brazil Cannot Stop” campaign does not adhere to scientific criteria and therefore cannot be followed. The campaign video encourages people not to stop their normal lives, despite a Health Ministry ordinance establishing sanctions for those who defy isolation orders. Based on the precaution principle applicable to the right to health (“in dubio pro salute“), the court also ordered people linked to the government to stop sharing or fomenting the spread of information that is not strictly founded on scientific evidence.

The context for thinking about such matters needs to be broad. As illustration, I mention two larger issues that concern critical thinkers interested in public law. The first deals with the problems of governance and accountability in the genetic age. For example, in Sheila Jasanoff’s account, as the questions that confront the public sphere become more complex, such as how to regulate the entities created by gene splicing, or how to manage the impacts of industrial biotechnology on agriculture, legal innovations are entangled with the “sovereignty of science.”[2] Jasanoff describes how law and biology “frame the possibilities, limits, rights, and responsibilities of being alive—most especially for the species we call human.”[3] As the philosopher puts it, “biological artifacts engage with and reshape our perception of rights and entitlements at many levels.”[4] Thus, “periods of significant change in the life sciences and technologies,” she argues, “should be seen as constitutional or, more precisely, bioconstitutional in their consequences.”[5]

Read the rest of this entry…
Print Friendly
Published on April 9, 2020
Author:          Filed under: Developments
 

Constitutional Quantum Mechanics and a Change of Government in Malaysia

Dian AH Shah and Andrew Harding, National University Singapore Faculty of Law

Democratic backsliding has become quite the flavour of the decade, unfortunately, as the pages of this blog reveal all too starkly: Hungary, Poland, Sri Lanka, Brazil, Indonesia, Turkey, and many other instances across the world.[1] In contrast Malaysia appeared – until recently – an interesting and all too rare contrary example of a state that was, to redeploy the metaphor, forward-sliding. Recent events, however, cast doubt on such analysis, as this note will argue.

Political background

On 10 May 2018 a new government – the first in 61 years since independence – took office on a reform agenda. The Pakatan Harapan (Coalition of Hope, or PH) won unexpectedly (how often is that adverb being used of general elections these days?), replacing the kleptocratic and increasingly divisive Barisan Nasional (National Front) government of Najib Razak, sunk by the ongoing ‘1MBD’ scandal that had broken in 2015. PH took power in a democratic tsunami that inspired expectations for much-needed governance reforms.[2]

The victory was ironic in several important respects. The constituent parties of the PH coalition were led by former long-term BN Prime Minister (1981-2003) Mahathir Mohamed, aged 93, who came out of a long retirement to shore up support amongst the Malay voter base by campaigning against his former party and a Prime Minister he emplaced. By some accounts, the PH needed to secure at least 30 percent of the Malay vote in order to win the elections. Two factors make this situation even more ironic. First, many of the systemic issues underpinning the 1MDB scandal (the breakdown in the rule of law, money politics, cronyism, and conflicts of interest) were ones for which the first Mahathir government could fairly be blamed. Second, a necessary condition for this arrangement was a truce between Mahathir and Anwar Ibrahim, his former Deputy Prime Minister and Finance Minister, with whom he had seriously fallen out in the late 1990s following the Asian economic crisis, Anwar’s attempts to dethrone Mahathir, and his jailing on Mahathir’s watch, ostensibly framed on a sodomy charge. Thus Mahathir, the leader of a small, custom-built party, PPBM (which essentially is a party built by former UMNO members), was the Prime Minister of choice for the coalition, which included PKR (Anwar’s party), DAP (a mainly Chinese party), and Amanah (an Islamic splinter party). The strategy paid off. With Mahathir as the poster-boy of the PH campaign, they managed to make inroads in the Malay heartlands and other urban and semi-urban constituencies that were previously BN strongholds. This led to a famous victory that indicated the people really did rule and abuses of power would not be tolerated.

Read the rest of this entry…
Print Friendly
Published on April 8, 2020
Author:          Filed under: Developments
 

Book Review: Clizia Franceschini on Mary Ellen O’Connell’s “The Art of Law in the International Community”


[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Clizia Franceschini reviews Mary Ellen O’Connell’s book on The Art of Law in the International Community (Cambridge University Press, 2019).


–Clizia Franceschini, PhD Student, IMT School for Advanced Studies Lucca, Analysis and Management of Cultural Heritage. Email: clizia.franceschini@imtlucca.it

Mary Ellen O’Connell is the Robert and Marion Short Professor of Law and is Research Professor of International Dispute Resolution- Kroc Institute for International Peace Studies, University of Notre Dame. The Art of Law in the International Community represents an effort of returning to natural law through arts and aesthetic philosophy as tools that could motivate and improve compliance to jus cogens rules and participation in the legal process.

In her book, O’Connell returns to Sir Hersch Lauterpacht’s natural law theory as the starting point to explain that some peremptory norms have roots in natural law theory, e.g. the prohibition on the use of force.[1] For Lauterpacht, positive law and positive law theory are accepted, but within a more complete theoretical concept of law that included natural law and legal process. In his theory, all law consists of mostly positive law within a frame of natural law. For these reasons, the book is part of the Hersch Lauterpacht Memorial Lecture Series, based on the themes explored by the world’s most distinguished scholars and practitioners in the annual lectures given in Cambridge to commemorate the unique contribution to the development of international law of Lauterpacht.

Read the rest of this entry…
Print Friendly
Published on April 7, 2020
Author:          Filed under: Reviews
 

What’s New in Public Law


–Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law

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 Kosovo found unconstitutional the decision of the government to restrict citizens’ freedom of movement during the coronavirus pandemic.
  2. In South Africa, a non-governmental organization has filed a suit in the Constitutional Court challenging a presidential order that the country should go into lockdown for 21 days to curb the spread of Covid-19.
  3. The Constitutional Court of Uganda invalidated legislation that gave police powers to stop public gatherings and protests.
  4. The Constitutional Court of Taiwan will hear arguments on decriminalization of adultery.
  5. The High Court of Singapore dismissed a challenge to Section 377A of the Penal Code, which criminalizes homosexual acts between males.
  6. The Constitutional Court of Zimbabwe declared a judicial appointment amendment to the Constitution unconstitutional.

In the News

  1. The National Election Board of Ethiopia postponed the upcoming general election amid the COVID-19 pandemic.
  2. The American Civil Liberties Union (ACLU) of Pennsylvania filed an emergency petition to the Pennsylvania Supreme Court seeking the release of some in the Commonwealth’s county jails.
  3. The Hungarian Parliament granted special powers to the Prime Minister to fight COVID-19 pandemic.
  4. The Canadian legislature passed emergency legislation that will allow the Minister of Health to circumvent patent laws for supplies that are necessary to combat the COVID-19 public health emergency.
  5. Albanian lawmakers extended the term of the parliamentary committee investigating whether the President should be impeached.

New Scholarships

  1. Seth Barrett Tillman, COVID-19: Can the Oireachtas Legislate During the Pandemic? Irish Law Times 94 (2020) (discussing the effect of a pandemic on the power of the legislature to legislate in Ireland)
  2. Alexander Somek, Cosmopolitan Constitutionalism: The Case of the European Convention (2020 forthcoming) (explaining how the idea of a ‘margin of appreciation’ is of pivotal significance in the context of the European Convention System)
  3. Evan J. Criddle, The Case Against Prosecuting Refugees, 115 Northwestern University Law Review (2020 forthcoming) (arguing that Congress has not authorized courts to punish refugees for illegal entry or re-entry)
  4. Scott Stephenson, Against Interpretation as an Alternative to Invalidation, 48 Federal Law Review 46-68 (2020) (evaluating the rise of interpretation as an alternative means of judicially enforcing legislative compliance with rights)
  5. Jedediah S. Britton-Purdy, David Singh Grewal, Amy Kapczynski and K. Sabeel Rahman, Building a Law-and-Political-Economy Framework: Beyond the Twentieth-Century Synthesis, Yale Law Journal, (2020 forthcoming) (suggesting new orientation of the scholarship on law and political economy that foregrounds realities of power, aspires toward equality and is committed to democracy)
  6. Anna Shashkova, Michel Verlaine and Ekaterina Kudryashova, On Modifications to the Constitution of the Russian Federation in 2020, 8 Russian Law Journal (2020) (examining the 2020 amendments to the Constitution of the Russian Federation)
  7. Vera Shikhelman, Implementing Decisions of International Human Rights Institutions – Evidence from the United Nations Human Rights Committee, 30 European Journal of International Law (2019) (analyzing empirical data about how and when states implement decisions of the United Nations Human Rights Committee in individual communications)
  8. Felix B. Chang and Sunnie T. Rucker-Chang, Roma Rights and Civil Rights: A Transatlantic Comparison (2020) (comparing the rights and social inclusion of two racialized minority groups, Roma in Central and Southeast Europe and African Americans in the United States)
  9. Brian Christopher Jones, Idolatry and Constitutional Change, in BC Jones, Constitutional Idolatry and Democracy: Challenging the Infatuation with Writtenness (2020 forthcoming) (explaining how idolatry affects constitutional change)

Call for Papers and Announcements

  1. The Institute for Comparative Federalism at Eurac Research invites applications for the Federal Scholar in Residence Program. The deadline for submission of applications is July 1, 2020.
  2. Scholars, students, practitioners, all disciplines, all nations, are invited to contribute articles, commentary, and other work to the new website and blog, Law Against Pandemic.  Student work is especially desired, so professors, please spread the word (at an appropriate social distance) in your schools.
  3. The Iranian Review for Law of the Sea and Maritime Policy invites submission of papers for its upcoming volume.
  4. The City Law School invites applications for four full-time, three-year doctoral scholarships, starting in September 2020. Two of these scholarships will be in EU Law. The deadline for submissions is April 16, 2020.

Elsewhere online

  1. Chiara Graziani, Covid-19 and EU Integration: Back to the Origins?, Brexit Institute
  2. 52 pages for 12 more years How Russia’s Constitutional Court justified letting Putin stick around and a whole lot more, Meduza
  3. Aditya AK, Freedom of Expression: Singapore High Court, Bar and Bench
  4. Michele Simonato, Mutual recognition in criminal matters and legal remedies: The first CJEU judgment on the European Investigation Order, European Law Blog
  5. Ephrat Livni, Will the US Supreme Court let Trump deport 27,000 healthcare workers despite coronavirus?, Quartz
Print Friendly
Published on April 6, 2020
Author:          Filed under: Developments
 

ICON Guest Editorial: Without a New European Patriotism, the Decline of the EU is Inevitable

On 26 March, an utterly divided EU emerged from the European Council dedicated to European measures aimed at managing the severest crisis since 1929, one far worse  than the 2012-2017 crisis. The coronavirus pandemic and the transpiring economic and social crises present Europe with an extraordinary opportunity: to decide to move towards a deeper unity, or to decline irrevocably. The prevailing road will naturally depend on the decisions of the governments in the European Council and other EU institutions; but also, and above all, on the mobilization of citizens and the public opinion in each of the Member States.   Can we still expect concrete and visible measures managing the ongoing tragic health crisis, as well as the imminent socio-economic crisis? Measures which correspond to the EU’s values, traditions, and increased global responsibilities? The question for Europe is the following:  is the EU a community of destiny, a Schicksalsgemeinschaft, or is it but an instrumental association of national selfishness, where the blind choice of each man for himself clearly prevails over rising up to historical challenges?   Does a common sense of belonging, based on strong common interests but also the commitment to stick together, still exist?

The forces of disintegration from the right and the extreme right,  victorious with Brexit but temporarily defeated in the EP elections of 26 May, are here, ready for a  renewed,  relentless attack on both  the euro and the EU. And this time round, these forces might even prove victorious, cynically taking advantage of the massive popular disconnection from the EU, caused partly by the enormous suffering endured during this health crisis and the social and economic tragedy that awaits us,  but also by the political and moral inaction of the pro-European elites.

Read the rest of this entry…
Print Friendly
Published on April 3, 2020
Author:          Filed under: Editorials
 

Redefining the Right to Privacy in the Age of the COVID-19 Pandemic


Dr. Olga Hałub-Kowalczyk, Chair of Constitutional Law, Faculty of Law, Administration and Economics, University of Wrocław, Poland

Nobody needs to be convinced of the direct impact on human rights flowing from the pandemic induced by the SARS-CoV-2 virus. The necessity of reorganizing the state and way it works goes hand in hand with sudden changes in how entire societies live, as well as the necessity of adapting to dynamically changing conditions. The interference of authorities in how we manage our time doubtlessly finds its expression in the right to privacy. The novel circumstances which nations, constitutional states and the European Union are facing induce reflection on the need of redefining the right to privacy. Does it retain its force? Has the appearance of COVID-19 in Europe expanded the sphere of acceptable interference by the state into an area which was previously free of the authorities’ presence? Will the current situation lead to lasting changes in the way privacy is perceived?

Read the rest of this entry…
Print Friendly
Published on April 2, 2020
Author:          Filed under: Analysis
 

How COVID-19 Unveils the True Autocrats: Viktor Orbán’s Ermächtigungsgesetz

Gábor Halmai, European University Institute

At a conference held at the London School of Economics and Political Science (LSE) in London on 20-21 May 1967, Isaiah Berlin used the term ‘false’ populism, defining it as “the employment of populist ideas for the ends other than those which the populist desired. That is to say – Berlin argues -, their employment by Bonapartists or McCarthyists, or the ‘Friends of the Russian people,’ or Fascists and so on. This is simply the mobilisation of certain popular sentiments – say hostility to capitalism or to foreigners or Jews, or hatred of economic organisation or of the market society, or of anything you like – for undemocratic ends”.[1] 

In my view, Viktor Orbán, Prime Minister of Hungary, is one of those autocrats, whose populism is ‘false’ and only used for populist rhetoric, but its decisive characteristic is authoritarianism. What makes him distinct from non-populist autocrats is the democratic elections through which he came to power in 2010, even though when in government he has changed the electoral law to keep his power.

Read the rest of this entry…
Print Friendly
Published on April 1, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


–Swapnil Tripathi, Attorney, India

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Burundi allowed former President Domitien Ndayizeye to contest in the Presidential election, due later this year.
  2. The Supreme Court of Israel held that Knesset Speaker Yuli Edelstein must reconvene the Parliament and schedule a vote on naming his replacement.
  3. The Supreme Court of the United Kingdom held that no further assistance should be given to authorities in the USA for the trial of two former British citizens accused of killing people for ISIS until the authorities give an assurance that the death penalty would not be imposed or if imposed, would not be carried out. Death penalty as a form of punishment has been abolished in the UK.
  4. The United States Supreme Court ruled that Byron Allen (an African-American entrepreneur) had to meet a demanding standard (i.e. his race was a but-for cause of his injury) in his lawsuit filed against Comcast for allegedly discriminating against him on the grounds of his race by not carrying programming from his network.
  5. The United States Supreme Court held that copyright holders cannot sue the states for copyright infringement. The case arose from a copyright infringement claim filed by Frederick Allen against the state of North Carolina for uploading his video and photos of the recovery of Queen Anne’s Revenge (a wrecked flagship vessel).

In the News

  1. Chile has postponed the referendum on whether to overhaul its Constitution due to Coivd-19 contingency measures.
  2. Federal Interior Minister of Germany banned the “United German Peoples and Tribes” organization, as well as its sub-group “Osnabruck Landmark” for its racist and anti-Semitic activities.
  3. Citizens of Guinea vote in a referendum whether or not to adopt a new Constitution. According to the government, the standout feature of the proposed Constitution is that it will codify gender equality.
  4. India declared a National Lockdown for 21 days to fight Covid-2019.
  5. Uzbekistan passed legislation that grants citizenship to stateless persons within its borders, who had received permanent residency before 1 January 1995.

New Scholarship

  1. Han-Ru Zhou, Legal Principles, Constitutional Principles, and Judicial Review, 67 American Journal of Comparative Law (2019)  (proposing a principle-based conception of judicial review of legislation in common law systems)
  2. Mordechai Kremnitzer, Talya Steiner, Andrej Land (eds.), Proportionality in Action: Comparative and Empirical Perspectives on the Judicial Practice (2020) (providing an empirical and comparative exploration of the proportionality doctrine in case law of apex courts in  Germany, Canada, South Africa, Israel, Poland and India)
  3. Randy E Bernett and Josh Blackman, An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know, (2019) (exploring the development of the US constitutional law over the past two centuries)
  4. Rebecca Schiel, Malcolm Langford and Bruce Wilson, Does it Matter: Constitutionalisation, Democratic Governance, and the Human Right to Water, 12 Water 350 (2020) (examining whether robust democratic governance is a determinant for ensuring that the constitutional recognition of the human right to water has concrete outcomes)

Calls for Papers and Announcements

  1. The African Disability Rights Yearbook (ADRY), published by Pretoria University Law Press, has invited submissions for the next issue in 2020. The deadline for submitting the manuscripts is 30 March 2020.
  2. The International Association of Constitutional Law (IACL-AIDC) in association with the University of Melbourne invites submissions for a roundtable on the topic “Democracy 2020: Assessing Constitutional Decay, Breakdown and Renewal Worldwide,” to be held on 10-12 December 2020. The deadline for submission of abstracts is 1 May 2020.
  3. The National Law School of India University, Bangalore invites submissions for its Indian Journal of Law & Technology (Volume 16). The last date for submissions is 15 April 2020.
  4. The University of Ghent, Belgium has issued a Call for Papers for its International Conference titled “The European Convention on Human Rights turns 70: Taking Stock, Thinking Forward,” to be held on 18-20 November 2020. The submissions date is 15 April 2020.
  5. The William S. Boyd School of Law, University of Nevada, invites submissions for a special issue of its Nevada Law Journal on “Race and Gender and Policing.” The last date for submission of abstracts is 5 May 2020.

Elsewhere Online

  1. Brian Christopher Jones, The Widely Ignored and Underdeveloped Problem with Judicial Power, UKCLA blog
  2. David R Cameron, After new ECB program and fiscal loosening, the EU needs joint action vs. pandemic, Yale MacMillan Centre
  3. Gadi Taub, Israel’s Supreme Court Rigs the Game Again, Haaretz
  4. Swapnil Tripathi, Do Ends Justify Means? Calcutta HC’s Expansive Reading Of Article 21 In Polish Student’s Case, Live Law
  5. William Isdale, Dr Yunupingu’s claim for native title compensation – the Constitutional path not yet trodden, AUSPUBLAW
  6. Kimberly Wehle, The Constitution will be in tatters if America holds no election this year, The Hill
Print Friendly
Published on March 30, 2020
Author:          Filed under: Developments
 

ICON Editorial: COVID-19 and ICON

Gráinne de Búrca & J.H.H. Weiler, Co-Editors-in-Chief, International Journal of Constitutional Law

We are pulled in opposite directions in the face of a global upending of normal life. At one level it is reassuring, even if hunkered down at home, as is our editorial team in six different countries, to continue serenely with our normal work in the face of such abnormal times. The life of the mind, the scholarly endeavor continues – even when juggled with caring responsibilities – not least as an act of faith in better times to come. Unlike war – a metaphor which is widely used and abused – we are not faced by the actions of evil men and women against whom one should rise in indignant protest. Yes, incompetence and irresponsibility might have played a role, but one should not rush to throw the first stone. With time such issues can be and will be sorted out.

And yet, in the face of spreading death and imploding economic circumstances on a truly global scale, to continue as if nothing is happening would be unacceptable and would border on the callous. That grave consideration apart, there are obvious issues of public law for which I.CON should be a forum for serious reflection. Do we wait till the dust settles, the crisis is overcome and then turn with distance and perspective to serious and rigorous reflection and analysis?  In some respects, one does not have that luxury – there are issues happening in real time which will not wait for that perspectival reflection and on which we are all looking for ongoing insight and understanding.

It is our fortune at I.CON that we do not have to face that choice. ICONnect, our sister blog and website, has never been a locus of gossip or ‘from the hip’ commentary. It is a forum, as is proven week in and week out, for brief but incisive legal commentary, oftentimes of the indispensable doctrinal genre (legal or illegal) in which immediate reactions to the COVID-19 crisis have already appeared and will continue to appear. The deeper reflection, conceptual and theoretical, doctrinal and otherwise, will appear organically in I.CON as time passes and the community of scholars engage with this perspectival dimension to our work.

Read the rest of this entry…
Print Friendly
Published on March 26, 2020
Author:          Filed under: Editorials