Blog of the International Journal of Constitutional Law

What’s New in Public Law

–Boldizsár Szentgáli-Tóth, Research Fellow at Centre for Social Sciences, Institute for Legal Studies – Centre of Excellence (Budapest); researcher at National University of Public Services (Budapest)

In this weekly feature, I-CONnect publish a curate 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 Polish Constitutional Tribunal ruled that the European Court of Human rights cannot question the legitimacy of its judges.
  2. The Supreme Court of India observed that the equivalence of prescribed qualifications with any other given qualification could not be decided through judicial review.
  3. The Constitutional Court of Colombia has overturned a lower court’s decision that forced a Colombian influencer to take down a video in which she expressed her Christian belief that marriage is between a man and a woman.
  4. Indonesia’s Constitutional Court ordered the government to amend parts of a controversial job creation law within two years, describing it as conditionally unconstitutional by undermining workers’ rights and environmental protection.
  5. South Dakota’s Supreme Court ruled against the legalisation of recreational marijuana
  6. The British Colombia Court of Appeal and British Colombia Supreme Court have decided to eliminate the practice of addressing justices as “my lady”, “my lord”, “your ladyship”, or “your lordship”.

 In the News

  1. The Venice Commission issued an urgent opinion on the recent Serbian constitutional amendments concerning the judiciary.
  2. The Parliament of Jordan opened the debate on constitutional changes concerning the electoral system and the country’s political structure.
  3. The Minister of Justice of Algeria stated that the installation of the Constitutional Court of Algeria was a significant step to building stable institutions and a consolidated democracy in the country.
  4. The Parliament of New Zealand went into urgency today to rush through legislation that will allow businesses and groups to introduce vaccination mandates among their staff ahead of the new Covid-19 Protection Framework starting in December, which raised severe constitutional concerns.
  5. An agreement was concluded in Sudan after massive protests to reinstate the former prime minister, release political prisoners, and restore the transition to civilian rule nearly a month after the military coup.
  6. Australia sent police and military forces to the Solomon Islands due to the spread of protests to maintain stability and normal constitutional processes in the country.
  7. The Government of South Africa approved a bill to be submitted to the Parliament concerning proposed amendments of the electoral system to allow independent candidates to run.
  8. The head of the Belarusian presidential administration identified key principles that should be incorporated into constitutional amendments currently being drafted.
  9. Auctioneers revealed the buyer’s identity of an extremely rare original copy of the US Constitution for a record $43 million – a billionaire who will loan it to a museum to maximise the document’s viewing.

New Scholarship

  1. Karlo Tuori, Properties of Law: Modern Law and After (2021) (critically examining modern state law)
  2. Ioanna Tourkochoriti, Freedom of Expression The Revolutionary Roots of American and French Legal Thought (2021) (exploring the impact of divergent revolutionary traditions in France and the United States on the freedom of expression)
  3. Brian Christopher Jones, 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. Monika Florczak-Wątor (eds): Judicial Law-Making in European Constitutional Courts. Routledge, December (2021) (analysing the specificity of the law-making activity of European constitutional courts)
  5. Rehan Abeyratne and Ngoc Son Bui (eds), The Law and Politics of Unconstitutional Constitutional Amendments in Asia (2021) (examining how the idea and practice of unconstitutional constitutional amendment are shaped by, and inform, constitutional politics across Asia)
  6. Zaid Al-Ali, Arab Constitutionalism: The Coming Revolution (2021) (critically examining the constitution-making and constitutional change in the Arab region after 2011)
  7. Berihun Adugna Gebeye, A Theory of African Constitutionalism (2021) (theorising the development and transformation of African constitutionalism from pre-colonial times to the present with the attendant constitutional designs and practices)

Calls for Papers and Announcements

  1. ICON-S CEE Chapter invites interested participants to join an online roundtable talk on the topic of the book Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021) by Mark Tushnet and Bojan Bugaric, on 9 December 2021.
  2. 7th Constitutional Law Scholars Forum invites submission for the conference held in Orlando, the USA, on 25 February 2022. The deadline for submissions of abstracts is 1 December 2021.
  3. The Law Unit of ATINER will hold its 19th Annual International Conference on Law, 11-14 July 2022, Athens, Greece, sponsored by the Athens Journal of Law. The deadline for submission of abstracts is 13 December 2021.
  4. Constitutional Law Review invites submissions for its second issue in 2021. The deadline for submissions is 30 December 2021.
  5. The editors are pleased to invite scholars to contribute a proposal for a new book on “Integrating Doctrine & Diversity: Inclusion and Equity Beyond the First Year,” published by Carolina Academic Press. The deadline for submissions is 1 December 2021.
  6. The Oklahoma Law Review is accepting tax-themed submissions for publication in its upcoming spring 2022 issue. The deadline for abstracts is 7 January 2022.
  7. The San Diego Law Review (SDLR) invites submissions for its 2022 Privacy Symposium. The deadline for submission is 15 March 2022.

Elsewhere Online

  1. Giacomo Orsini, Jean-Baptiste Farcy, Sarah Smit & Laura Merla, Security-vested Institutional Racism: the Case of Migration to Belgium, Verfassungsblog
  2. Mohsin Alam Bhat, Irregularizing Citizenship in India, Verfassungsblog
  3. Charles Kaiser, Justice on the Brink review: how the religious right took the supreme court, The Guardian
  4. Ronan Cormacain, Blue-eyed Babies, Amnesties, Sovereignty of Parliament and the Rule of Law: The Northern Ireland Legacy Proposals, UK Constitutional Law Association
  5. Arvind Kurian Abraham, Constitutions and Housework, IACL-AIDC Blog
  6. Paul Daly, The Kerr Report, 50 Years On: An Overseas Overview, AUSPUBLAW
  7. Imani Henrick, Bitebo Gogo, Ogah Peter Ejegwoya & Ayowole Olotupa-Adetona, The role of African governments in the implementation of the Revised Declaration on freedom of expression online in Africa, AfricLaw
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Published on November 29, 2021
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Colombia | 2020 Developments in Constitutional Law

Carlos Bernal, Professor, University of Dayton School of Law; Diego González, Deputy Justice, Constitutional Court; Maria Fernanda Barraza, LL.M. Candidate, Cornell University; Sebastián Rubiano-Groot, Law Clerk, Constitutional Court

I. Introduction

2020 was one of the most eventful years in the recent history of Colombia. During the first trimester, civil society, public authorities, and private actors, faced critical challenges related to the unprecedented social demonstrations that spread out across the country. Though the first mobilizations took place on November 2019, the so-called “National Strike” lasted unexpectedly until March 2020 and shaped a national movement, which since then has asked for a “national dialogue”. In March, the Covid-19 virus reached Colombia and generated catastrophic social and economic disruptions. It posed unparalleled challenges to national and local public authorities and gave rise to the President´s declaration of a State of Exception. What started as a health emergency rapidly grew into an economic and social crisis, which brought about decisive legal decisions that raised important constitutional questions. In this context, all branches of government took part in the decisions about the appointments of high officials and defined the current composition of some of the most important public institutions.

In this report, we discuss how these challenges shaped 2020 in Colombia. First, this report focuses on how social protests, the Covid-19 emergency, and the appointments of high officials led to important constitutional debates and political concerns regarding the separation of power in Colombia. In particular, the report portrays the President´s exercise of extraordinary powers twice during 2020 to control and to prevent the spread of the virus as well as to mitigate its impacts. Secondly, this report analyses the Court´s main rulings on the most emblematic Covid-19 Legislative Decrees. Finally, this report addresses the Court´s cases relating to women´s reproductive rights and gender equality, animal rights, freedom of the press and information in contexts of closed criminal proceedings, and the public surveillance implications on the right to privacy.

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Published on November 27, 2021
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Why Ethiopia’s Crisis Needs a New Constitutional Settlement

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.]

In my first column, back in January 2021, I wrote about Ethiopia’s constitutional crisis. Within a year, that constitutional crisis has grown into a state crisis. Now, the territorial integrity and political unity of Ethiopia are in question, and its people are under devastating conditions and pitted against each other by their elites and great power politics. Since the start of the war in November 2020, Ethiopia has been on the agenda of the United Nations Security Council (UNSC) almost every month. Each time, the members of the UNSC express their commitment to the territorial integrity and political unity of Ethiopia as they push for the peaceful resolution of the ongoing war between the Tigray People’s Liberation Front (TPLF)- i.e., the ruling party in Tigray regional state- and the federal government. They also indicate that the conflict should be solved in line with Ethiopia’s Constitution. But unlike the members of the UNSC, the Ethiopian Constitution is not committed to the territorial integrity and political unity of the country. Considering the political developments since the start of the war, solving the current crisis through constitutional means could end Ethiopia as we know it, and this is partly why, I believe, the Constitution is not helpful to bring durable peace not only in Ethiopia but also in the entire Horn of African region. Here is why.  

Ethiopia is a federation, but a different kind where more than 80 ethnolinguistic groups can secede anytime without even providing any justification as a matter of constitutional right. Thus, the Ethiopian federation is a “federation of convenience”, and this differentiates Ethiopian federalism from the federal systems of many democratic states. Whether a federal system is adopted out of considerations of security, economic prosperity, freedom, and democracy – as in many Western federal democracies such as the United States– or it is adopted as an accommodation mechanism for ethnic, religious, and linguistic diversity – as in many post-Second World War federal systems such as Nigeria or India, a democratic federal system formally commits to the continuity and indivisibility of the federal union.[1] Democratic federalism, then, is like a marriage vow by which constituent units of a federation take each other ‘to have and to hold from this day forward … until death do us part.’ Here the claim is not that the promise of indivisibility alone would bring a perpetual union.[2] Rather, as a matter of political theory and practice, democratic federations make a solemn commitment to their continuity. Whether such federations would continue to exist is contingent upon several factors both within and beyond them. But Ethiopian federalism has no such solemn commitment.

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Published on November 24, 2021
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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

Developments in Constitutional Courts

  1. The Constitutional Court of Thailand upheld a law that states marriage can only be contracted between a man and a woman.
  2. The Constitutional Court of Albania will review the dismissal of the President in June 2021.
  3. The Constitutional Court of Colombia will vote on the decriminalisation of abortion.
  4. The Supreme Court of India set aside the lower court’s ruling that skin to skin contact is essential for a sexual offence.
  5. The Supreme Court of India cautioned against the abuse of public interest litigation.
  6. The Constitutional Court of Ecuador held a hearing in the Indigenous Cofan territory of Singanoe.

In the News

  1. Prime Minister Narendra Modi announces the repeal of three contentious farm laws.
  2. US Congress punishes Congressman Paul Gosar over a violent clip.
  3. Members of Parliament in the UK back raising the minimum marriage age to 18 to protect children.
  4. Greece suspends espionage trial of 24 aid workers.
  5. India is likely to get the first openly gay person as a judge of a constitutional court.

New Scholarship

  1. Nikolas Bowie, Antidemocracy, 135 Harv. L. Rev. 160 (2021) (analysing the anti-democratic potential of the decision of the US Supreme Court in Cedar Point)
  2. Giuliano Amato, Benedetta Barbisan and Cesare Pinelli, Rule of Law vs Majoritarian Democracy (2021)(exploring the framework within which the tension between the rule of law and majoritarian democracy takes place on four key themes)
  3. Rainer Grote, Mariela Morales Antoniazzi, and Davide Paris, Research Handbook on Compliance in International Human Rights Law (2021) (offering an in-depth examination of the most significant factors affecting compliance with international human rights law, focusing in particular on the relationships between regional human rights courts and domestic actors)
  4. Raymond Wacks, The Rule of Law Under Fire? (2021) (examining the risks posed to the rule of law by the rise of populism, authoritarianism and nationalism and suggesting strategies for their effective management)
  5. Shruti Bedi, The Contestation Between the Right to be Forgotten and Freedom of Expression: Constitutional Silences and Missed Opportunities, 6 Comparative Constitutional Law & Administrative Law Journal 1 (2021) (highlighting the importance of striking a balance between the right to privacy and freedom of speech and expression and suggesting that both rights can coexist in the context of the right to be forgotten)

Calls for Papers and Announcements

  1. The University of Hong Kong Faculty of Law is currently soliciting applications for up to three postdoctoral fellows under its Global Academic Fellows program. Applications close January 3, 2022.
  2. American University Washington College of Law’s Academy on Human Rights and Humanitarian Law invites JD/law students from around the world to register as teams in the 2022 Inter-American Human Rights Moot Court Competition to be held in an offline mode on May 23-27, 2022.
  3. The Criminal and Constitutional Law Journal invites submissions for its upcoming volume. The deadline for submissions is December 31, 2021.
  4. ANU Law and the Centre for International and Public Law invite registrations for an international conference on the theme of Public Law and Inequality on February 16-18, 2022. The conference will be held in a hybrid format.
  5. All are welcome to an online workshop on Getting Published in Public Law on Wednesday 8th December from 3-5pm, hosted by the Public Law Section of the Society of Legal Scholars and the British-Irish Chapter of ICON-S.

Elsewhere Online

  1. Maja Sahadžić, Bosnia and Herzegovina’s Constitutional Crisis: Is this time different?, Centre on Constitutional Change.  
  2. Dominique Custos, Some food for comparative thinking on the disclosure of reasons for administrative action: Using comparative lenses to examine the French law of giving reasons, British Association of Comparative Law (BACL) Blog.   
  3. Anmol Jain, Judicial Review of Legislative Process – Analysing Calcutta High Court’s Decision in Ambika Roy, Indconlawphil.
  4. Karolina Kocemba, Towards Gilead, Verfassungsblog.
  5. Lasse Schuldt, In Singapore’s war on fake news, the Constitution is not an obstacle, Verfassungsblog.
  6. Melissa Crouch, Feminisation of the Judiciary between Thick and Thin: Women as Model Minority Judges in Indonesia, IACL – AIDC blog.
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Published on November 22, 2021
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Indian Anti-Conversion Laws Have No Place in a Constitutional Democracy

Kruthika R, LLM Student in Human Rights, Central European University, Vienna

Three federal states in India have passed laws that criminalise religious conversion for marriage without a prior state permission. And mandates a cumbersome procedure to obtain permission from the state to convert to another religion for marriage. These laws in effect attempt to tackle ‘Love Jihad’: a Hindu right-wing trope that claims that young Hindu women are duped into conversion to Islam in the guise of marriage. The anti-conversion laws in effect make it difficult for interfaith couples to get married. 

Is religious conversion required for the solemnisation of inter-faith marriages in India? For interfaith couples, the Special Marriage Act, 1954 (‘SMA’) regulates the marriage procedure and solemnisation. Since its enactment, several of its provisions have been criticised. One of the most controversial provisions is regarding public notices. A couple intending to get married under the Act is required to submit a notice to the Marriage Officer who will publish it in a ‘conspicuous place in his office’. Any objections received need to be investigated and the Officer may refuse to solemnise the marriage if he/she finds merit in the objections.

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Published on November 20, 2021
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The Difference Between Lula and Bolsonaro: What is at Stake?

Thomas Bustamante, Professor of Philosophy of Law, Federal University of Minas Gerais and Global Research Fellow, New York University

The Brazilian Worker’s Party has just released a jingle to promote former Brazilian president Lula da Silva on his 76th birthday, which anticipates the tone of Lula’s campaign for the 2022 presidential elections. The jingle marks a stark contrast between Lula’s and Bolsonaro’s political views.

Bolsonaro’s discourse is grounded in an ethos that presupposes two assumptions: first, the idea that society is divided between good citizens, who support the conservative values of Bolsonarism, and pseudo citizens that attach to less valuable forms of life; second, the thought that good citizens, unlike ordinary people, are entitled to a special liberty that can be described as freedom without responsibility.

Freedom without responsibility is the most central tenet of Bolsonarism. It rejects the liberal account of autonomy, which is based on the Kantian idea that we are free to the extent that we are rational beings who can control our instinct and bear responsibility for what we do to others or to ourselves. In contrast to the enlightenment’s conception about the world, Bolsonarism entitles its supporters (but no one else) to act on inclination without the burden to assess themselves.

Lula’s response is based in the opposite idea, a call for hope and a faith in the capacity of humble and ordinary people to decide their fate. Lula’s political marketing took no more than three sentences to pass this message. The jingle begins with the statement: ‘I wish so much to be governed by someone who can feel our pain’. The first value is thus the value of empathy, of the capacity to share the anguish of the people and to respond appropriately to their needs. In other words, it asserts a duty of the government to threat its citizens as equal subjects, worthy of the same kind of consideration and respect.

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Published on November 17, 2021
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What’s New in Public Law

–Wilson Seraine da Silva Neto, Master Student at the University of Coimbra – Portugal; Postgraduate 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

Developments in Constitutional Courts

  1. The United States Supreme Court has heard arguments on the second amendment case. The justices’ questions suggested that New York’s guns control law is likely to be stricken down.
  2. Brazil’s Supreme Court ruled in a majority to maintain Justice Rosa Weber’s decision to veto payments (slush fund) that government officials use with the support of the Bolsonaro administration to attract deputies and senators in key votes.
  3. The United States Supreme Court has heard arguments in a case involving three Muslim men from California who accused the FBI of illegally conducting surveillance on them following the September 11, 2001 attacks.
  4. The Supreme Court of the United Kingdom blocks U.K. class-action lawsuit against Google on behalf of more than 4m Apple iPhone users over Google’s alleged tracking of personal data.
  5. The United States Supreme Court mulled a bid from a Texas death row inmate who is challenging the state’s refusal to allow his pastor to lay hands on him and audibly pray while he is executed.
  6. The Supreme Court of India has agreed to hear a plea by journalist Shyam Meera Singh and two others that seeks to quash a Tripura Police FIR under controversial anti-terror law UAPA for social media posts – including Mr Singh’s “Tripura is burning” tweet – made during violence in the state last month.
  7. The United States Supreme Court heard arguments on a potential landmark case looking into whether it’s constitutional to deny federal benefits to ageing and disabled U.S. citizens living in Puerto Rico, even though they can access them if they live on the mainland.
  8. The Constitutional Court of the Kingdom of Thailand ruled that three activists aimed to overthrow the state and the monarchy in their speeches and ordered them and other parties to end all moves against the highest institution.

In the News

  1. Eric Leroy Adams, a former New York City police captain whose attention-grabbing persona and keen focus on racial justice fueled a decades-long career in public life, was elected as the 110th mayor of New York and the second Black mayor in the city’s history.
  2. Pablo Escobar’s “cocaine hippos” are considered people, U.S. judge ruled.
  3. Colombia’s Constitutional Court rejected the request by former President Alvaro Uribe to revoke his indictment on fraud and bribery charges.
  4. The far-right German party AfD takes the Parliament to court over representation in the top-level Presidium of the Bundestag.
  5. The Orbán government has lodged a complaint with the Constitutional Court of Hungry against the order of the Kúria refusing to certify a referendum on child protection from the cabinet.
  6. The National Assembly appointed Rok Svetlič a judge on the Constitutional Court of Slovenia for a nine-year term in a secret ballot.
  7. A Bogota court barred Colombia’s President Ivan Duque from ratifying a controversial constitutional amendment that suspended electoral legislation meant to prevent the use of public funds in election campaigns.

New Scholarship

  1. Ryan Goss, What Do Australians Talk About When They Talk About ‘Parliamentary Sovereignty’? (2021) (arguing that references to parliamentary sovereignty and parliamentary supremacy in the Australian context either cannot stand, need not stand, or do not helpfully stand, as efforts to explain Australian public law).
  2. Julia M. Puaschunder. Environmental, Social and Corporate Governance (ESG) Diplomacy: The time has come for a Corporate and Financial Social Justice Great Reset (2021) (examining three trends that have become prevalent in the wake of the coronavirus pandemic: social inequality, economy and clime change).
  3. Maartje De Visser, Constitutionalising Cities: Realising Government Agendas or Sites for Denizen Engagement?, in Unlocking the Constitutional Handcuffs on Canadian Cities (forthcoming 2022) (outlining two ideal types for city-empowering constitutional amendments.)
  4. Berihun Adugna Gebeye, A Theory of African Constitutionalism (2021) (theorising the development and transformation of African constitutionalism from pre-colonial times to the present with the attendant constitutional designs and practices.)
  5. Rosalind Dixon and David Landau, Abusive Constitutional Borrowing (2021) (identifying and examining the phenomenon of abusive constitutional borrowing by judges, lawyers and political actors around the world.)
  6. Silvia Suteu, Eternity Clauses in Democratic Constitutionalism (exploring the role of eternity clauses in constitution-making, constitutional adjudication, and constitutional reform.)

Call for Papers and Announcements

  1. Institute for Legal Research at University of Coimbra and House-Refuge Project invite submissions to the IV Debate on “Forests and Legislation: The New Integrated Management System for Rural Fire,” which will take place on December 17th.
  2. Verfassungsblog and Völkerrechtsblog call for contributions for a blog symposium and journal special issue on “Comparative Climate Litigation in North-South Perspective. The deadline is November 15th.
  3. Amity Law Review (ALR) invites submissions for its 17th Volume, which will be published in a digital version. The last date of submission is November 30th.
  4. Lucknow Law Review invites submissions for its Volume 1, Issue 3. They publish research articles, long and short, case comments, and book reviews. The deadline for submissions is December 15th.
  5. The Criminal and Constitutional Law Journal invites submissions for its Volume 1 Issue in the form of articles, case comments, or book reviews. The deadline is December 31st.
  6. Jean Monnet Chair in Law and Transatlantic Relations, Institute for the Study of European Law (ISEL) and International Law and Global Affairs (ILAG) invite to the lecture “Transatlantic Perspectives on Populism: ‘Bugaric & Tushnet’s ‘Power to the People’” on November 24th.

Elsewhere Online

  1. Interview with Professor Kasim Trnka, The OHR and the BiH Constitutional Court are the Safeguards of the State, Sarajevo Times.
  2. Who are the most cited Brazilians in Law on Academic Google, Conjur.
  3. Paulo Iotti, STF acerta ao reconhecer a injúria racial como crime de racismo, Migalhas.
  4. Imelda B Deinla, Women Judges and the Rise and Fall of Philippine Democracy, IACL-AIDC Blog.
  5. Anna Dziedzic, Women Judges, Local Judges, Foreign Judges: Methods of Collecting and Analysing Data on Gender and Pacific Judiciaries, IACL-AIDC Blog.
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Published on November 15, 2021
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Governance by Memorandum: Constitutional Soft Law in Malaysia

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

Beginning in early 2020 Malaysia has experienced an extraordinary period of political instability that has tested many constitutional norms to the limit and perhaps beyond the limit. Aspects of this instability have been discussed by us in this blog previously.[1]

On this occasion we are pleased to report more positive developments that point towards a period of relative stability, and moreover indicate the likelihood of important reforms centring on parliamentary institutions. This change in fortunes is due to the signing on 13 September 2021 of a Memorandum of Understanding (‘MOU’) between the federal government and the Pakatan Harapan (PH) opposition coalition.

In this report we describe first the background to the MOU, and then the content and significance of the MOU itself in its general and specific provisions. The interest of this in terms of constitutional law generally is wider than Malaysia, given that we confront, as we argue here, political constitutionalism in the form of ‘constitutional soft law’. Our conclusion is that this form of soft law – in this case embodied in the MOU – has potential benefits as a method of stabilising a country that has become politically unstable. To be sure, the MOU at this point appears to promise a good deal, but it guarantees nothing. The MOU lacks binding legal force, and it does not guarantee the survival of the current administration. However, given the timing and context in which it was adopted (specifically, in an environment of political uncertainty, threats of shifting political alliances, and public fatigue with self-serving political battles), it could prove to be significant in offering Malaysia a much needed “political reset”.

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Published on November 13, 2021
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Cost-Benefit Reasoning Versus Proportionality: A Rejoinder

Xin Dai* and Yun-chien Chang**

[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by Xin Dai and Yun-chien Chang to two replies to their article, The Limited Usefulness of the Proportionality Principle.]

We appreciate the two insightful replies authored by Professor Anne Peters and Professors Cristóbal Caviedes and Francisco J. Urbina. Both replies acknowledge that the proportionality principle (PP) has its shortcomings but reject our proposal that cost-benefit analysis (CBA) does better what proportionality purports to do. In this rejoinder, we briefly address key issues raised by these replies in order to bolster the case for CBA as a better procedure than PP for legal analysis in many, if not all, institutional contexts. Our core message is that even in the constitutional review context, where not all considerations should be taken into account by courts, PP is still not the most ideal decision-making tool.

  1. Quantification is never required but is usually helpful

CBA requires comprehensive balancing but not necessarily quantification of values, which both replies view as implausible and meaningless. As Profs. Caviedes and Urbina rightfully suggested, we could have spelled out that by CBA we referred very generally to the type of rational, consequentialist, all-considered decision-making procedure. The critical superiority of CBA over PP, as we have argued in the original essay, is that CBA enables decision-makers to “balance all relevant considerations,” which is what many proponents believe that PP does (it does not). The major advantage in making decisions by first identifying all thinkable pros and cons (with or without quantification) is that such a procedure helps overcome the human tendency of attending to only a subset of relevant factors when making difficult decisions. A structured decision procedure such as PP, as we explained, reinforces exactly such a tendency and, as a result, is a crippled, under-inclusive CBA.

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Published on November 12, 2021
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The Governmentalization of Global Human Rights Governance – A Rejoinder

David McGrogan*

[Editor’s Note: this is a rejoinder, from the latest issue of ICON, by David McGrogan to a reply to his article, The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance.]

The latest issue of ICON contains a Reply by Maxime St-Hilaire to my 2018 article, ‘The Population and the Individual: The Human Rights Audit as the Governmentalization of Global Human Rights Governance’.[1] I am grateful to Dr St-Hilaire for his comments, and to the Editors-in-Chief at ICON for giving me the opportunity to respond. That opportunity is particularly timely, as earlier this year a book of mine was published which elaborates considerably on the themes explored in that article.[2] This Response therefore allows me not only to reply to Dr St-Hilaire’s comments, but also to briefly summarise the way in which the book expands on what I consider to be the central observation of the article – namely, that something similar to what Foucault described as the ‘governmentalization of the state’ is taking place in what I call – with apologies – the ‘governmentalization of global human rights governance’.

First, then, a brief word on Dr St-Hilaire’s Reply. It is chastening when one encounters the response of a reader to the presentation of one’s ideas and it becomes evident that what one had hoped to state clearly was, in fact, unclear. Let me, then, take the opportunity here to attempt to re-state my argument. I confess that I do not in general find Foucault’s work to be particularly insightful or interesting. But the concept of ‘governmentality’ as elucidated in the Security, Territory, Population lectures[3] is an exception, because it hits on something important about the nature of governance and the role that law plays within it.

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Published on November 11, 2021
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