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I·CONnect

Blog of the International Journal of Constitutional Law

What’s New in Public Law


–Susan Achury, Visiting Lecturer at Texas Christian 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 iconnecteditors@gmail.com.

Developments in Constitutional Court

  1. The US Supreme Court ruled against Texas’s challenge to the Affordable Care Act based on a procedural issue of standing.
  2. The US Supreme Court ruled in favor of a Catholic foster care agency, declaring it a violation of the free exercise of religion the decision of ending its contract after they refused to work with same-sex couples.
  3. The Colombian Constitutional Court ruled that a woman with HIV was fired without just cause and granting a special protection.
  4. Russian Constitutional Court ruled allowing the enforcement of debt judgments on bankrupt’s sole home.
  5. The Mexican Supreme Court determined that it is “mandatory” for Mexico to comply with the measures of the Committee against Forced Disappearance (CED) of the United Nations (UN).
  6. The Constitutional Court of Spain ruled constitutional sanctions of disqualification from running for popular election positions for electoral crimes.
  7. The Romanian Constitutional Court ruled that the Special Section for magistrates of the Section for Investigation of Criminal Crimes (SIIJ) can be dismantled only by the Parliament and not by ordinary courts. In the reasoning, the court argued that the priority of the application of EU law must not be perceived in the sense of removing or disregarding the national constitutional identity.

In the News

  1. Ecuador implements Constitutional Court Rulings Protecting Rights
  2. Turkey’s Constitutional Court will conduct its first examination in a case filed for the closure of the Peoples’ Democratic Party (HDP).
  3. The Colombian Senate decided to accuse the former magistrate before the Supreme Court of Justice for alleged acts of corruption.
  4. Poland’s Constitutional Court postponed for the third time its review of whether the country must comply with a demand by the Court of Justice of the EU (CJEU) to suspend judicial reform, which was declared to be contrary to EU law.
  5. The Mexican Supreme Court of Justice of the Nation is scheduled to discuss the general declaration of unconstitutionality on the prohibition of the use of marijuana.
  6. In Spain, the political party Vox has challenged the constitutionality of the Euthanasia Law, arguing it violates the constitutional right to life
  7. Hungarian Parliament adopted a bill banning LGBT content in schools.
  8. In Peru, the presidential election results have been challenged in courts through requests for annulment.
  9. The European Court of Human Rights (ECHR) received climate activists’ challenge to Norway’s Arctic oil plans.
  10. European Parliament urged European Commission to support patent waiver for COVID-19 vaccine.

New Scholarship

  1. Yun-chien Chang, Nuno Garoupa, and Martin T Wells, Drawing the Legal Family Tree: An Empirical Comparative Study of 170 Dimensions of Property Law in 129 Jurisdictions (2021) (providing a taxonomy of legal systems, based on their legal family tree and created using variance on property law using an average-linkage agglomerative hierarchical clustering, an unsupervised machine-learning method).
  2. Adam Chilton, Justin Driver, Jonathan S. Masur, and Kyle Rozema, Assessing Affirmative Action’s Diversity Rationale (2021) (providing empirical support for the benefits of diversity in higher education that supports the constitutionality of affirmative action programs by looking at student-run law reviews).
  3. Evan D. Bernick, Eliminating Constitutional Law (2021) (arguing that theories of law should include a factor interpretive choice).
  4. Jorge Ernesto Roa, La ciudadania dentro de la sala de maquinas del constitucionalismo transformador latinoamericano (2021) (arguing that Latin America transformative constitutionalism builds on broad access to constitutional justice to materialize social promises contained in constitutions).
  5. Jonathan Rauch, The Constitution of Knowledge: A Defense of Truth (2021) (analyzing the constitutional conflicts arising from fakes news and democratic principles and examining solutions to an “epistemic crisis” of an American crisis of information).
  6. Martin Belov, Peace, Discontent and Constitutional Law: Challenges to Constitutional Order and Democracy (2021) (exploring how constitutions serve as a reliable framework for peaceful co-existence while allowing for reasonable and legitimate discontent).
  7. Hèctor López Bofill, Law, Violence and Constituent Power: The Law, Politics, and History of Constitution Making (2021) (arguing that legitimacy of the constitution-making in liberal democracies is based on violence).
  8. Fruzsina Gárdos-Orosz and Zoltán Szente, Populist Challenges to Constitutional Interpretation in Europe and Beyond (2021) (exploring the relationship between populism or populist regimes and constitutional interpretation used in those regimes).
  9. Andrej Lang, Non-judicial rights review of counterterrorism policies: The role of fundamental rights in the making of the counterterrorism database and the data retention legislation in Germany (2021) (examining how rights considerations affect the making of anti-terrorism policy in Germany).
  10. Chiara Valentini, Deliberative Democracy, Social Rights and the Modulation of Judicial Review (2021) (examining the idea of a “third way” for judicial action that mediates between judicial inertia and activism).
  11. Guillaume Tusseau, Comparative constitutional litigation: A critical introduction to constitutional procedural law (2021) (examining the procedural rules of nearly 200 constitutional justice systems).

Calls for Papers and Announcements

  1. The Comparative Constitutional Law Research Forum of the Centre for Comparative and Transnational Law at CUHK law invites submissions for a workshop on “Issues in Public Law in South Asia.” (Abstract due July 30).
  2. The Comparative Constitutional Law and Administrative Law journal invite papers for his Volume 6 Issue 1. (Submissions due August 15).
  3. The Review of European Administrative Law invites an online discussion on the edited collection Cases, materials, and texts on judicial review of administrative action (Hart 2019) on July 2021).
  4. The University of Miami School of Law and the University of Houston Law Center invites submissions for a Virtual Colloquium on Race, Racism, and American Media. (Submissions due June 21).
  5. The Chair of French Public Law at Saarland University is recruiting an Assistant to the Editor-in-Chief for a comparative public law journal to be published in English.
  6. Curtin Law School at Curtin University in Perth, Australia, invites submissions for the International Trade and Business Law Review. (Submissions due July 31).
  7. International Journal for The Semiotics Of Law & Comparative Legilinguistics issued a call for papers for three special issues on “COVID-19 infodemic –between law, ethics, and fake news.” (Abstract due December 10).
  8. Eurac Research invites applications for the 2022 Federal Scholar in Residence Program in Italy. (Applications due July 1).
  9. The Northern Illinois University College of Law is accepting proposals for the Fourth Annual Chicagoland Junior Scholars Conference on October 1, 2021. (Abstract due June 25)
  10. The University of New Hampshire Law Review Fall 2021 invites submission for the Symposium on “The War on Drugs 50 Years Later: Where we are and Where we’re Going.”
  11. The South Dakota Law Review invites submissions to a symposium on issues related to marijuana law. (Abstracts due July 1).
  12. The Comparative Constitutions Project announced the latest release of its data on Characteristics of National Constitutions, updated through the end of 2020.

Elsewhere Online

  1. Javier Rodríguez Sandoval, El voto nulo y el triunfo de la derecha en Ecuador, Nueva Sociedad.
  2. Evangelia Psychogiopoulou and Federica Casarosa, Social Media, Fundamental Rights And Courts In Europe, British Association of Comparative Law.
  3. María Sosa Mendoza, Perú: ¿de la indignación a una nueva Constitución? Nueva Sociedad
  4. Jacob Gursky and Samuel Woolley, Countering disinformation and protecting democratic communication on encrypted messaging applications, Brookings.
  5. Joel I. Colón-Ríos, Of Colonies and Empires, IACL-AIDC Blog.
  6. Seána Glennon, More Power to the People? The Citizens’ Assembly on Gender Equality and The Future for Minipublic Deliberation in Ireland, IACL-AIDC Blog.
  7. Kate Dommett, Constitutional reformers need to tackle six key questions about the regulation of digital campaigning, The Constitution Unit.
  8. Stoyan Panov, The Role of the European Public Prosecutor’s Office and the Magnitsky Sanctions, JURIST.
  9. Louis Rene Beres, Politics, Law and the Triumph of Chaos, JURIST.
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Published on June 21, 2021
Author:          Filed under: Developments
 

What’s New in Public Law


Boldizsár Szentgáli-Tóth, Research fellow at Centre for Social Sciences, Institute for Legal Studies – Centre of Excellence (Budapest); Research Fellow at Eotvos Loránd University (Budapest)


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

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

Developments in Constitutional Courts

  1. U.S. Supreme Court takes up FBI bid to block Muslim civil rights suit.
  2. U.S. Supreme Court rebuffs challenge to all-male military draft.
  3. U.S. Supreme Court held, that immigrants who entered the U.S. illegally cannot apply for green cards simply because they enjoy Temporary Protected Status, or TPS.
  4. The Latvian Constitutional Court finds that the provisions of the Istanbul Convention comply with the Latvian Constitution.
  5. Zimbabwe court upheld chief justice’s right to resume work despite age.           .
  6. The Constitutional Court of South Korea held the opening hearing of the first ever case in the country, when a sitting judge had been impeached over abuse of judicial power.

In the News

  1. Delhi court dismissed a prisoner’s request for special food, dietary supplements.
  2. Washington Superior Court finds city of Seattle’s payroll expense tax on salaries constitutional.
  3. The Eleventh Circuit Court ruled, that an inmate’s claim against the U.S. that his constitutional right to be protected from cruel and unusual punishment was violated, when prison officials negligently placed him with a violent cellmate, is blocked by the Federal Tort Claim Act’s discretionary function exception.
  4. CDU surprises pollsters, scores big win in German state election.
  5. Albanian Parliament impeaches president for vote comments.
  6. Japan ruling MPs seek emergency clause for constitution amid pandemic response discontent.
  7. Constitutional referendum in Haiti originally scheduled on June 27 2021 has been postponed indefinitely.
  8. Slovenia to hold referendum on drinking water on July 11.
  9. A Libyan political leader announced his intention to block Libyan referendum since he has been excluded from presidential candidature due to his dual citizenship.
  10. Mexican president may seek constitutional change in power industry.

New Scholarship

  1. Ernst Hirsch Ballin, Gerhard van der Schyff, Maarten Stremler, and Maartje De Visser (eds), The City in Constitutional Law – European Yearbook of Constitutional Law 2020 (2021) (examining the positioning and powers of cities in the contemporary constitutional context)
  2. Martin Belov (ed), Courts, Politics and Constitutional Law: Judicialization of Politics and Politicization of the Judiciary (2021) (examining how the judicialization of politics, and the politicization of courts, affect representative democracy, rule of law, and separation of powers)
  3. Brian Christopher Jones (ed), Democracy and Rule of Law in China’s Shadow (2021) (providing detailed insight into some of the most contentious events occurring in jurisdictions operating within China’s vast shadow)
  4. Ian Loveland (ed), British and Canadian Public Law in Comparative Perspective (2021) (exploring current human rights controversies arising in UK law, in the light of the way such matters have been dealt with in Canada)
  5. G. Delledonne, G. Martinico, M. Monti, and F. Pacini, Italian Populism and Constitutional Law (2021) (diagnosing the relationship between constitutionalism and populism in the Italian context, featuring 15 chapters offering various perspectives on this relationship)

Calls for Papers and Announcements

  1. The Minerva Law Network organizes a conference a panel session with a title “Women and the International Law Commission,” in which the current and former women of the International Law Commission will discuss their experiences in the Commission and their work on the progressive development of international law and its codification. The panel will take place online, on June 30, 2021.
  2. The Bonavero Institute of Human Rights at the University of Oxford hosts a workshop on “Issues in Public Law in South Asia,” to be held on June 10-12, 2022. The deadline for submissions is July 30, 2021.
  3. The South African Research Chair in International Constitutional Law in the Faculty of Law (UP Law) at the University of Pretoria (UP), Prof Dire Tladi, invites applications for full-time Research Master’s, Doctoral, Postdoctoral candidates commencing in 2022. The deadline for submission of applications is 30 June, 2021.
  4. University of Oxford and Max Planck Institute for Comparative and Private International Law, with the funding of the British Academy Global Professorship and the Max Planck Institute, organize the second Decolonial Comparative Law Workshop on “Decolonial comparative legal history: indigenous and global South law prior to colonialism.” The deadline for submissions is February 9, 2022.
  5. Droit Public Comparé – Comparative Public Law (DPC-CPL) invites those that are interested to submit papers to the biannual peer-reviewed journal dedicated to Comparative Public Law. Articles can be written in English or French, and will be published in spring and autumn, 2022.
  6. The AACL calls for nominations for the 2021 Saunders Prize, which will be awarded to the author of an article or note on a subject of constitutional law published in an Australian legal journal in 2020. The deadline for all nominations is June 21, 2022.
  7. Nova Southeastern University Shepard Broad College of Law hosts the 2022 Nova Law Review Symposium on March 11, 2022. The theme of the symposium is “Under Pressure:  Legal and Systemic Responses to the Psychological Trauma Associated With COVID-19.” The deadline of submissions is July 16, 2021.
  8. Indiana University McKinney School of Law and Indiana Journal of Law and Social Equality (IU Maurer School of Law) organize a hybrid conference on “Law vs. Antisemitism.” to be held on March 13-14, 2022. The deadline of submissions is August 1, 2021.
  9. Submissions are invited for two events on Judicial education and on Judicial conduct in Ireland in September and October 2021, with a selection of papers to be published afterwards in special editions of the Irish Judicial Studies Journal. This project is funded by the Irish Research Council and is undertaken in conjunction with the Irish Council for Civil Liberties and further information and calls for papers are available here.

Elsewhere Online

  1. Jennifer Selin, How the Constitution’s federalist framework is being tested by COVID-19, Brookings
  2. Andreas Fischer-Lescano, Georg Restle, Kein Anspruch auf Sendezeit: Warum die Rundfunkfreiheit kein Einlassticket für rechte Parteien ist, Verfassungsblog
  3. Florian Kriener, Gabriel Álvarez Argüello, Alina Maria Ripplinger, Nicaragua’s Electoral Counter-Reform, Verfassungsblog
  4. Felix Ekardt, Shell’s Climate Obligation: Climate, Civil Courts, Human Rights, and Balance of Powers, Verfassungsblog
  5. Jasper Mührel, Standing for Piglets: The Locus Standi of Non-Human Beings Under the German Constitution, Verfassungsblog
  6. Radosveta Vassileva, Framing and Raiding: Bulgaria’s Kafkaesque Prosecutor’s Office, Verfassungsblog
  7. Sven Jürgensen, Für immer dein Feind?: Über die Präzedenzwirkung im Parteiordnungsrecht, Verfassungsblog
  8. Maximilian Beyer, Sangeeta Mahapatra, and Matthias C. Kettemann, Fighting Platforms and the People, not the Pandemic: #ResignModi and Disinformation Governance in India – an update, Verfassungsblog
  9. Maximilian Steinbeis, After he’s gone, Verfassungsblog
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Published on June 14, 2021
Author:          Filed under: Developments
 

ICON’s Latest Issue: Table of Contents

Volume 19 Issue 1

Table of Contents

Editorial

Afterword: Neil Walker and his Critics

Fleur Johns, The sovereignty deficit: Afterword to the Foreword by Neil Walker

George Duke, Sovereignty’s rationale: Afterword to the Foreword by Neil Walker

Nicole Roughan, Surplus or surrender? Afterword to the Foreword by Neil Walker

Lucia Rubinelli, Democracy and sovereignty: Afterword to the Foreword by Neil Walker

Neil Walker, The sovereignty surplus: A rejoinder

Articles

Giovanni De Gregorio, The rise of digital constitutionalism in the European Union

Harry Hobbs and George Williams, Micronations: A lacuna in the law

Critical Review of Governance

Melissa Loja, Recent engagement with international human rights norms by the courts of Singapore, Malaysia, and Philippines

Critical Review of Jurisprudence

Po Jen Yap and Rehan Abeyratne,Judicial self-dealing and unconstitutional constitutional amendments in South Asia

Critical Review of Constitution-Making

Sergio Verdugo and Marcela Prieto, The dual aversion of Chile’s constitution-making process: Bolivarian constitutionalism and the Pinochet Constitution

Special Section: Game of Laws

Fernando César Costa Xavier, Huehue constitutionalism

Symposium: The PSPP Judgment of the Bundesverfassungsgericht

Joseph H.H. Weiler, Why Weiss? The I•CON symposium: Preface

Jürgen Basedow, Jan Dietze, Stefan Griller, Manuel Kellerbauer, Marcus Klamert, Luigi Malferrari, Tibor Scharf, Dominik Schnichels, Daniel Thym, Jonathan Tomkin, in cooperation with and co-signed by Peter Behrens, Georg Berrisch, Jan Ceyssens, Herwig Hofmann, Susanne Kalss, Katja Langenbucher, Leander D. Loacker, Till Müller-Ibold, Theo Öhlinger, Ingolf Pernice, Jessica Schmidt, Francesco Schurr, Gerd Schwendinger, Andreas von Bonin, Robin van der Hout, European Integration: Quo Vadis? A critical commentary on the PSPP judgment of the German Federal Constitutional Court of May, 5 2020

Ulrich Haltern, Revolutions, real contradictions, and the method of resolving them: The relationship between the Court of Justice of the European Union and the German Federal Constitutional Court

Karen J. Alter, When and how to legally challenge economic globalization: A comment on the German Constitutional Court’s false promise

Stefanie Egidy, Proportionality and procedure of monetary policy-making

Marco Dani, Edoardo Chiti, Joana Mendes, Agustín José Menéndez, Harm Schepel and Michael A. Wilkinson, ‘It’s the political economy..!’ A moment of truth for the Eurozone and the EU

Tom Flynn, Constitutional pluralism and loyal opposition

Review Essays

Lucas Brang, Conceptual realism and imperial nostalgia in Chinese legal historiography. Review of Gao Quanxi, Zhang Wei, Tian Feilong. Xiandai zhongguo de fazhi zhi lu [The Road to the Rule of Law in Modern China]; Zhang Yongle. Jiu bang xin zao: 1911-1917 [The Remaking of an Old Country: 1911-1917]

Erika Arban, City, State: Reflecting on Cities in (Comparative) Constitutional Law. Review of Ran Hirschl, City, State. Constitutionalism and the Megacity

Book Reviews

Hannah Birkenkötter, Review of Vijayashri Sripati, Constitution-Making Under UN Auspices. Fostering Dependency in Sovereign Lands

Silvia Steininger, Review of Antje Wiener, Contestation and Constitution of Norms in Global International Relations

Eugenie Merieau, Review of Takao Suami, Anne Peters, Dimitri Vanoverbeke, Mattias Kumm (eds), Global Constitutionalism from European and East Asian Perspectives

Darshan Datar, Review of Myriam Hunter-Henin, Why Religious Freedom Matters for Democracy: Comparative Reflections from Britain and France for a Democratic “Vivre Ensemble”

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Published on June 12, 2021
Author:          Filed under: Editorials
 

Internationalised Constitution-Making in Deeply Divided States: A Note on South Sudan

Armi Beatriz E. Bayot, University of Oxford Faculty of Law

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

Describing a state as failed, failing, or fragile has often been a prelude to international intervention. Such was the case for Sudan,[1] where an internationalised peace process aimed at resolving a decades-long armed conflict eventually resulted in the 2005 Comprehensive Peace Agreement (CPA) between the government of Sudan and the Sudan People’s Liberation Movement/Sudan People’s Liberation Army (SPLM/A).[2] The CPA provided for new government and security arrangements, elections, and the holding of a referendum in 2011 for southern independence.[3] And this has likewise been the case for South Sudan.[4] International actors have brokered multiple ceasefires and peace deals seeking to stem the seemingly intractable violence that has beset South Sudan since civil war erupted in 2013.[5]

Among the indicators of South Sudan’s alleged failure as a state are its deep societal cleavages and the near-constant violent armed conflict over power among political and military elites.[6] International actors, including the United Nations, are therefore keen to help South Sudanese finally draft a permanent constitution that would hopefully signal a transition from highly centralised, highly militarised government to broad-based accommodation and free and fair elections.[7] Unless the constitution-drafting process for South Sudan avoids the ways in which international involvement exacerbated societal divisions in the past, however, the new constitution could merely codify cleavages that fuel armed conflict.  External third-party involvement and support can strengthen the relative position of certain actors over others, thereby entrenching ethnic divisions and unjust power relations.

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Published on June 9, 2021
Author:          Filed under: Analysis
 

ICON: Editors’ Choice of Books 2020

As is now our custom, our Book Review Editor, Michaela Hailbronner, invited the I•CON Board members to reflect on the books that had a significant impact on them during the past year. Their contributions, posted on I•CONnect, were read with interest and curiosity. In the following pieces Marian Ahumada, Richard Albert, Tom Ginsburg, and Wojciech Sadurski write about the books they read or reread this past year and which they found inspiring, enjoyable, or even “must-reads” for their own work or public law scholarship in general.

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Published on June 8, 2021
Author:          Filed under: Editorials
 

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 Supreme Court of India held that citizens have the right to criticize the government as long they do not incite violence.
  2. The European Court of Justice ruled that Germany failed to cut dangerous air pollution.
  3. The Constitutional Court of Mali named Colonel Assimi Goita as the country’s transitional president.
  4. The Supreme Court of Brazil authorized a criminal probe into allegations that the Environment Minister obstructed a police probe into illegal logging.
  5. The U.S. Supreme Court limited the reach of the federal computer fraud law.
  6. The Supreme Court of India questioned the policy mandating compulsory registration in CoWIN app for COVID – 19 vaccination flagging India’s digital divide.
  7. The Federal Court of Australia upheld Australia’s outbound travel ban.

In the News

  1. PM of Isreal, Benjamin Netanyahu seeks block on deal to oust him.
  2. Israel appoints Isaac Herzog as new President.
  3. Danish Parliament approves law to deport to deport asylum seekers to countries outside Europe.
  4. Germany officially apologizes for Namibia genocide.
  5. Canada introduces legislation to change complaints process under Judges Act.
  6. The government of India introduces guidelines for care and protection of the children affected by the pandemic.
  7. Prosecutors demand a 30 year prison sentence for Derek Chauvin in George Floyd Murder case.
  8. Human rights and media organizations oppose Pakistan’s Media Development Authority Ordinance 2021.
  9. Canada mourns as remains of 215 children found at indigenous school.
  10. China’s silencing of Tiananmen tributes extends to Hong Kong.

New Scholarship

  1. Charlotte Reyns, Saving Judicial Independence: A Threat to the Preliminary Ruling Mechanism, 17 European Constitutional Law Review 26 (2021) (explores the issue of structural inadmissibility of questions for preliminary ruling that arises due to the attempts to safeguard the independence of the EU judiciary.)
  2. Democratic Decay: Challenges for Constitutionalism and the Rule of Law, 7 Canadian Journal of Comparative & Contemporary Law (2021) (featuring a symposium on Rosalind Dixon & David Landau’s Abusive Constitutional Borrowing and articles on the theme of democratic decay.)
  3. Ittai Bar-Siman-Tov (ed.) Comparative Multidisciplinary Perspectives on Omnibus Legislation (2021) (contributes to the global debate over omnibus legislation by providing a cross – national , comparative and multi-disciplinary exploration of omnibus legislation.)
  4. Shannon Reid, The Deepfake Dilemma: Reconciling Privacy and First Amendment Protections, 23 U. Pa. J. Const. L. 209  (2021) (argues for a re-evaluation of U.S. First Amendment jurisprudence and suggests that U.S. courts could recognise personality and reputation claims under the Fourteenth Amendment and balance the same with First Amendment in a better fashion.)
  5. Giuliano Amato, Benedetta Barbisan, Cesare Pinelli, Rule of Law vs. Majoritarian Democracy (forthcoming 2021) (explores the tension between rule of law and majoritarian democracies based on four parameters such as the meaning of ‘people’, the phenomena impacting traditional democratic balance of powers and institutional order and the juxtaposition between non representative bodies and people’s representation.)
  6. Andrew T. Kenyon, Democracy of Expression: Positive Free Speech and Law (2021) (emphasises on the positive dimensions of free speech and argues that positive enablement makes possible a democracy of expression in which society has a voice, formulates judgments, and makes effective claims of government.)  

Calls for Papers and Announcements

  1. The Bonavero Institute of Human Rights, University of Oxford, Centre for Comparative and Transnational Law, Chinese University of Hong Kong and Asian Law Centre, Melbourne Law School invite submissions for a workshop on Issues in Public Law in South Asia to be held between June 10 – 12, 2022. The proposals may be submitted by July 30, 2021.
  2. The Catolica Law Review welcomes submission of articles in the field of public law for its Vol VI, Issue 1 to be published in January 2022. The deadline for paper submissions is September 30, 2021.
  3. The National Law University Jodhpur Law Review invites submissions for its Vol VIII Issue 1. The manuscripts may be submitted by June 15, 2021.
  4. Loyola University Chicago School of Law and George Washington University Law School invite paper submissions for their Twelfth Annual Constitutional Law Colloqium to be held on November 12-13, 2021. The deadline for submission of abstracts is June 21, 2021.
  5. The International Review of Human Rights invites submissions for VII issue to be published in February 2022. The last date for submission of manuscripts is September 5, 2021.
  6. The Goettingen Journal of International Law invites submissions for its student essay competition on the International Law in Times of a Pandemic. The deadline for submissions is August 1, 2021.

Elsewhere Online

  1. Yaniv Roznai & Matan Gutman, Saving the Constitution from Politics, Verfassungsblog.
  2. Manika Zalnieriute, Procedural Fetishism and Mass Surveillance under the ECHR, Big Brother Watch v. U.K., Verfassungsblog.
  3. Tanmay Singh and Abhinav Sekhri, India’s New Intermediary Guidelines, Verfassungsblog.
  4. Dragoș Călin, The Court of Justice of the European Union, ultima ratio for saving the independence of the judges in Romania – a commentary of the CJEU preliminary ruling in C-83/19, C-127/19, C-195/19, C-291-19 and C-355/19 and C-397/19, AFJR and Others, Constitutionalism and Politics, EUI Blog.
  5. Vasudev Devadasan, Intermediary Guidelines and the Digital Public Sphere: Balancing the Scales, Indconlawphil.
  6. Pierre de Vos, No Good Legal Options: Zuma Could Be Planning An All Out Political Attack On The Judiciary, Constitutionally Speaking.
  7. Paolo Sandro, Do You Really Mean It? Ouster Clauses, Judicial Review Reform, and the UK Constitutionalism Paradox, UK Constitutional Law Association Blog.
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Published on June 7, 2021
Author:          Filed under: Developments
 

How the Captain Defeated the Army: Bolsonaro Subordinates the Military in Brazil

Ulisses Levy Silvério dos Reis & Rafael Lamera Giesta Cabral, The Federal University of the Semi-Arid Region

Jair Bolsonaro’s victory for the Presidency of Republic in 2018 brought numerous challenges to the Brazilian democratic experience. Since the re-democratization in 1985, the military has never been so close to power as it is now. On the other hand, there is a clear contradiction in this movement for two reasons: while Bolsonaro represents the main political victory of the military since the enactment of the 1988 Constitution, the President is a former Army Captain who was involved in acts of indiscipline and disloyalty in the 1980s and was considered a bad soldier. For more than 30 years, Bolsonaro was a representative member of the Brazilian Chamber of Deputies without relevant political expression and performed several acts in defense of the military dictatorship, torture, and other human rights violations. Once President of the Republic, he assigned strategic positions to members of the Armed Forces at the highest levels of the federal administration, becoming the most militarized government since the military dictatorship.

With the outbreak of the Covid-19 pandemic, Bolsonaro adopted a negationist stance, with frequent attacks on science and ignoring the recommendations of the first Brazilian Ministry of Health, Luiz Henrique Mandetta, and international organizations, especially the World Health Organization. The government, led by Bolsonaro, encouraged a campaign of “herd immunity” through the mass contamination of the population (refusing numerous proposals for buying vaccines) and, for that, he had to appoint four Ministers of Health until he found one able to carry out its project: Eduardo Pazuello, an Army general and specialist in logistics, who held the office between May 2020 and March 2021.

The spread of contamination and death in Brazil during Pazuello’s tenure was disastrous. While Brazil approached 470,000 deaths due to Covid-19, government negligence involved: A) early treatment with chloroquine and its derivatives (a drug with no recognized medical efficacy); B) refusal to adopt social distancing measures; C) absence of mass testing; D) refusal to purchase vaccines; and E) deaths due to lack of oxygen in the state of Amazonas. The sum of these events led the Federal Senate to create a Parliamentary Inquiry Commission to investigate the government’s negligence. The testimonies and documents already collected clearly demonstrate that Bolsonaro’s omission reflects a project based on the attempt to achieve herd immunity of the Brazilian population through mass infection, which could lead to the death of millions of people. The testimony of Pazuello, who left the Ministry of Health in March 2021, was one of the most anticipated by the Commission. His testimony, though, was counterproductive, permeated by evasive answers and false statements.

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Published on June 6, 2021
Author:          Filed under: Developments
 

Does President Biden’s Agenda Provide an Antidote to Trumpism?

Miguel Schor, Drake University School of Law

The assault on the Capitol on January 6, 2021, demolished the idea of American exceptionalism, the idea that the United States is a democratic model that other nations should emulate. The groundwork for the attack was laid by a campaign of lies waged by the President and his allies that the election was stolen. The assault was an attempted autogolpe. It was also a manifestation of Trumpism, which is a very ordinary form of politics once thought to be practiced primarily in the developing world. Trumpism’s key features are the following: (1) loyalty to a leader supplants loyalty to institutions; (2) emergencies are normalized to mobilize supporters and exhaust opponents; (3) clientelist policies are used to buy votes; (4) electoral rules are manipulated to protect incumbents; and (5) lies are normalized.

The issue is whether Joe Biden’s agenda–the American Rescue Act, the American Jobs Plan, and the American Families Plan–provides an antidote for Trumpism. The size (around $6 trillion) and boldness of the programs have led political pundits to compare Biden’s agenda to F.D.R.’s New Deal during the Great Depression. What has received less attention, though, is the small d democratic argument advanced both by Joe Biden and F.D.R. Biden, in his April 29, 2021 speech to Congress, and F.D.R., in his 1944 state of the union address where he called for the creation of positive socio-economic rights, both argued that the government needed to provide social benefits to ordinary citizens for democracy to endure.

Is the small d democratic claim made by President Biden and President Roosevelt right? To critically assess this claim, it needs to be mapped onto our existing theories of democratic erosion and breakdown. Those theories can be grouped into three families of explanations: (1) exogenous shocks; (2) leadership; and (3) ordinary citizens.

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Published on June 2, 2021
Author:          Filed under: Analysis
 

What’s New in Public Law


Wilson Seraine da Silva Neto, Master Student at the University of Coimbra – Portugal; Postgraduate Student in Constitutional Law at Brazilian Academy of Constitutional 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 iconnecteditors@gmail.com.

Developments in Constitutional Courts

  1. The Supreme Court of Spain issued a statement against the grant of a pardon to the Catalan separatists convicted over a failed 2017 independence bid.
  2. The Supreme Court of Canada is set to hear an appeal of sentencing in the mosque shooter case.
  3. The Supreme Court of the United States hears a case that could further curb or even overturn its 48-year approval of a woman’s right to abortion.
  4. The Constitutional Court of Albania will review the constitutionality of the 2019 local elections.
  5. The Constitutional Court of Albania upheld the decision of President Ilir Meta not to appoint a candidate for the office of a Foreign Minister in January 2019.
  6. The Constitutional Court of Malta confirmed compensation awarded to the owners of a Paola property burdened by a protected lease for the past 30 years, incorporating the European Court Human Rights case law.
  7. The Constitutional Court of Bosnia and Herzegovina ruled that Mico Jurisic, who was jailed for 11 years for crimes against humanity against non-Serb civilians in the Prijedor area during the war in 1992, did get a fair trial.
  8. The Supreme Federal Court of Brazil hears a case challenging a ban on animal testing in the cosmetics industry in RJ.
  9. The Supreme Federal Court of Brazil held that the Union must immediately adopt measures to protect the life, health and safety of the indigenous populations that inhabit the Yanomami and Mundurucu Indigenous Lands.

In the News

  1. The Spanish National Court will investigate charges against Polisario leader Brahim Ghali, including crimes against humanity such as genocide, terrorism, and torture. Judge Santiago Pedraz, however, denied requests to arrest Ghali.
  2. The European Court of Human Rights ruled that the UK government’s bulk interception of communications powers “did not contain sufficient ‘end-to-end’ safeguards to provide adequate and effective guarantees against arbitrariness and the risk of abuse”, thus violating the rights to privacy and freedom of expression.
  3. The UK Supreme Court announces its first paid internships for aspiring lawyers from underrepresented communities to help increase diversity in the judiciary.
  4. The Supreme Court of the United States may revisit its ruling on Native American Rights in Oklahoma.
  5. Trudeau expected to name Ontario judge to Supreme Court of Canada before Canada Day.
  6. A Black woman will serve on the Missouri Supreme Court for the first time.
  7. The National Assembly of Slovenia changed the Constitutional Court Act to oblige the Court of Slovenia to handle every petition for which the petitioner had legitimate interests on submission even though that interest might have been lost while the case was pending.
  8. Supreme Federal Court of Brazil launches the second edition of its compilation of jurisprudence on the pandemic in English.

New Scholarship

  1. Timothy Kuhner, Representative Democracy in an Age of Inequality: why legal reforms are needed to protect New Zealand’s system of government (2021) (critically examining New Zealand’s democracy)
  2. Daniel Eisaqui and Gabriel Terenzi (eds), The role of the judiciary in the Rule of Law: Limits and Possibilities (2021) (examining the rule of law in Brazil)
  3. Shiling Xiao, Proportionality, Unreasonableness and a Unified Model: Reframing the Spectrum of Intensity of Judicial Review (2021) (examining the relationship between proportionality and unreasonableness in judicial review)
  4. Marcelo Neves, Constitutionalism and the Paradox of Principles and Rules (2021) (offering a unique approach to constitutionalism, focusing on the paradoxical relationship between principles and rules from the perspective of systems theory)
  5. Victor Ferreres Comella, The Constitution of Arbitration (2021) (examining arbitration from the unique perspectives of constitutionalism, legitimacy, and the rule of law)

Calls for Papers and Announcements

  1. Goethe University in Frankfurt organizes a lecture series on “Political Falsehoods: Diagnoses and Concepts,” which is to take place from June 2 through July 14, 2020.
  2. Indian Journal of Law and Legal Research invites submissions to its second volume. The deadline for submissions is June 1, 2021.
  3. International Review of Human Rights Law invites submissions to its seventh issue (February 2022), The deadline for submissions is September 5, 2021.
  4. Kerala Law Academy Law College, in association with Centre for Advanced Legal Studies and Research (CALSAR), organizes an online conference on “Recent Trends in Human Rights and Changing Facets of Religious Freedom,” to be held on August 7, 2021.
  5. KLE Law Journal invites submission to its 2020-2021 journal. The deadline for submissions is June 10, 2021.

Elsewhere Online

  1. Samuel Moyn and Daniela Caglioti, Human Rights in History, Cambridge University Press
  2. Christina Duffy Ponsa-Kraus, The Perils of Politics in the Scholarly Debate on Puerto Rico’s Constitutional Status, IACL-IADC Blog
  3. Thiago Hansen, Caroline de Quadros, and Gustavo Favini, Salvo Melhor Juízo
  4. Amala Govindarajan and Ananya K, India’s Covid-19 vaccination policy must protect the constitutional rights of its citizens, OxHRH Blog
  5. André Nollkaemper, Shell’s Responsibility for Climate Change: An International Law Perspective on a Groundbreaking Judgment, Verfassungsblog
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Published on May 31, 2021
Author:          Filed under: Developments
 

Transformative Constitutionalism and the Basic Structure Doctrine: A New Account from Kenya

Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

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

On 13 May 2021, the Constitutional and Human Rights Division of the High Court of Kenya handed down an important judgment in David Ndii and Others v Attorney General and Others (BBI judgment). The decision struck down President Uhuru Kenyatta’s the “Constitution of Kenya Amendment Bill, 2020”, engineered through the Building Bridges Initiative (BBI), as unconstitutional.  The Constitution of Kenya Amendment Bill was a comprehensive constitutional reform proposal that aimed to introduce some fundamental changes to several chapters of the 2010 Constitution of Kenya to “build a lasting unity in the country.” For example, the redesign of the legislature by bringing the Government back to Parliament, the expansion of the national executive by creating the Office of the Prime Minister and Deputy Prime Ministers, the inclusion of the Leader of the Official Opposition in Parliament, and the creation of 70 new constituencies were among the many changes introduced by the Bill.

In its 321-page judgment, the five-judge Court framed 17 broad issues for determination including the applicability of the Basic Structure Doctrine and its implications for amendment powers, the nature and remits of popular participation in constitution-making, and the responsibility of unconstitutional exercise of public authority. The Court found that the Basic Structure Doctrine is applicable in Kenya, that the Constitution of Kenya Amendment Bill is unconstitutional, and that President Kenyatta violated the Constitution in his attempt to amend it through the BBI.

The BBI judgment has already attracted the attention of several scholars [see for example here, here, here, here, and here]. While this case will be further litigated in the Court of Appeal – and we have to wait and see what the final outcome will look like – the judgment offers some unique jurisprudential insights to the Basic Structure Doctrine and transformative constitutionalism. In this column, I analyze the judgment’s contribution to the theory and practice of transformative constitutionalism.

One of the main features of constitutions in the global south, including Kenya, is their transformative ethos. In the global south, constitutions are not only devices of constituting and constraining political power, but they are also mechanisms for enabling broader societal transformation. This feature of constitutionalism is called transformative constitutionalism. Although transformative constitutionalism may have more normative appeal and descriptive potential to much of the global south, its subject and extent varies widely, and its significance is not limited to the global south.[1]

Even though the normative commitments, theoretical contours, and interpretive frameworks of transformative constitutionalism have been a subject of discussion for quite some time, Karl Klare’s original account captures its essence: transformative constitutionalism is ‘a long-term project of constitutional enactment, interpretation, and enforcement committed … to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’.[2] As an interpretive project, transformative constitutionalism may require a break from the liberal individualistic conception and its formal distinction between law and politics. As a broader constitutional vision, it mainly aims to transform rather than preserve the constitutional order and its animating socio-economic, political, and cultural systems.

While the BBI judgment is transformative, it is transformative in a unique Kenyan way, and this is what makes the judgment so important to the theory and practice of transformative constitutionalism. 

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Published on May 26, 2021
Author:          Filed under: Developments