magnify

I·CONnect

Blog of the International Journal of Constitutional Law

The Ties that Bind: Thailand’s Constitutional Court & the Military Junta

Khemtong Tonsakulrungruang, Chulalongkorn University and Björn Dressel, ANU

After five years of dormancy, the Thai Constitutional Court (CC) is alive again. As the 2019 election unfolded, it decided a series of high-profile cases, which confirm that the CC does not judge political cases impartially and is closely tied to the military establishment that has overseen Thailand’s democratic transgression.

Since 2006, Thailand is divided between the urban royalist ‘yellow shirts’ who support a military intervention and the pro-democratic ‘red shirts.’ Over the following tumultuous decade, most of the CC’s decisions were criticized for being anti-democratic, toppling red-shirt governments and consolidating military rule. 

How well-founded are these allegations? Legal scholars identify problematic readings of law and bending of legal doctrine towards the yellow shirts. Scholars of Thai politics have concluded that the judiciary is aligned with royalist elites. Yet the empirical evidence for either view is scant.

Drawing on our previous work, we draw attention to how the ideology of judges is embedded in the pro-authoritarian elite network. There have been deliberate attempts to recruit judges from a conservative elite coalition, thus diminishing the CC’s ability to be an impartial arbiter.

Read the rest of this entry…
Print Friendly
Published on June 12, 2019
Author:          Filed under: Analysis
 

What’s New in Public Law

Vicente F. Benítez R., JSD candidate at NYU School of Law and Constitutional Law Professor at Universidad de La Sabana

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 Israel stayed an order to deport a Human Rights Watch official from the country. 
  2. The Constitutional Court of Romania postponed, for the fifth time, a decision on a controversy between the Parliament and the High Court regarding the makeup of the three-judge panels in charge of adjudicating corruption lawsuits.
  3. The U.S. Supreme Court placed a new limitation on the Chevron doctrine after reviewing a decision issued by the Social Security Administration.
  4. The Supreme Court of Canada held that over-policing of racial minorities without any reasonable suspicion constitutes a breach of the Charter.
  5. A submission to the International Criminal Court calls for the prosecution of some of the EU and its member states’ officials for the deaths of thousands of migrants who drowned in the Mediterranean.  
  6. The Constitutional Council of Algeria cancelled the next presidential election scheduled for July 4 2019, right after rejecting the presidential candidates’ applications.
  7. The Constitutional Court of Colombia struck down some provisions that prohibited the consumption of alcohol and certain drugs in public areas (such as public parks and the like). The Court held this measure was unreasonable as it unduly restricted consumers’ right to individual freedom. One Justice dissented, while two of them filed concurring votes.  
  8. The Federal Supreme Court of Switzerland temporarily suspended the International Association of Athletics Federations’ ruling that prevented Caster Semenya from running some distances races.
  9. The Supreme Court of Argentina upheld a law that seeks to protect the country’s glaciers after a challenge was filed against the law by a mining company.
  10. The Supreme Court of Spain temporarily suspended the exhumation and transfer of the remains of former dictator Francisco Franco. 
  11. The U.S. Supreme Court rejected the government’s request to speed up the review of DACA.
  12. The Constitutional Court of Ukraine is set to hear a petition to evaluate the constitutionality of the recent dissolution of the country’s Parliament.
  13. The Constitutional Council of Mozambique declared the nullity of the acts inherent to the loan contracted by Ematum SA, and the respective sovereign guarantee granted by the government in 2013.
  14. The Court of Final Appeal in Hong Kong ruled that a same-sex couple has the same right to employment and tax benefits as an opposite-sex couple.
  15. The Supreme Court of Brazil held that state-owned companies do not require congressional authorization to sell their subsidiaries.        

In the News

  1. The presidents of the two chambers of the Brazilian Congress are confident that the pension reform, supported by President Jair Bolsonaro, will pass in the near future. 
  2. The President of the Supreme Court of Israel Esther Hayut and Justice Minister Ayelet Shaked exchanged critical remarks against each other over their stances on the independence of the judiciary.  
  3. The Minister of Defence of Canada, Harjit Sajjan, expressed his disappointment about China’s detention of several Canadian citizens and called for their immediate release.
  4. In India, the Punjab and Haryana High Court declared that all animals in the state of Haryana are “legal persons.”
  5. In light of the recent Colombian Constitutional Court’s ruling that confirmed the congressional override of President Duque’s veto on the peace jurisdiction bill, a congressman filed a constitutional complaint to overturn Congress’ President’s decision to sink the granting of 16 congressional seats to representatives of victims.
  6. The Constitutional Review Commission, in charge of drafting a new Constitution for Gambia, met with key stakeholders to know their views on specific constitutional provisions.
  7. In Nepal, leaders of the Samajbadi Party Nepal announced that they will withdraw from the governmental coalition should the government continue to ignore their calls to amend the Constitution.
  8. The Indigenous Australians Minister, Ken Wyatt, recognized that the achievement of constitutional recognition of Aboriginal and Torres Strait Islander people in the Constitution will be a long and delicate process which he wants to “get it right.”
  9. The Prime Minister of Slovakia, Peter Pellegrini, stated that the 1968 Soviet-led invasion to Czechoslovakia was illegal and expressed his disagreement against an attempt on the part of the Russian Duma to legitimize it.
  10. In Myanmar, the Tatmadaw (military) and Union Solidarity and Development Party (USDP) submitted an amendment bill to the Assembly of the Union. This proposal seeks to curtail the powers of the President.
  11. A trial Court in Sweden rejected a petition to have WikiLeaks founder Julian Assange detained in absentia.
  12. Opposition parties in Japan introduced a bill to recognize same-sex marriages.
  13. Thousands of people in Honk Kong gathered to pay their respects to those who lost their lives in Beijing’s Tiananmen Square in 1989.
  14. The President of Romania, Klaus Iohannis, called political parties to amend the Constitution in line with the anticorruption referendum held previously. The main opposition party, the National Liberal Party, supported this petition.
  15. A massive demonstration calling for PM Andrej Babiš’s resignation was held in Czech Republic.   
  16. The citizens of San Marino voted to amend the Constitution and ban discrimination based on sexual orientation, according to a referendum that took place on Sunday, June 2 2019.
  17. The government of Hungary postponed the introduction of the new administrative court system.
  18. The government of France banned the publication of statistical information about judges’ decisions, and established a maximum punishment of five years in prison for anyone who breaks the new law.
  19. The new parliament of Thailand elected former Commander in Chief of the Royal Thai Army, Prayuth Chan-ocha, as the country’s Prime Minister.
  20. After dozens of demonstrators were shot in Sudan, the African Union suspended Sudan’s participation in the organization.
  21. In Thailand, the Future Forward Party (FFP) asked the Constitutional Court to suspend 30 MPs, mostly from the Palang Pracharath Party (PPRP) due to their alleged ownership of shares in media companies.
  22. The Department of Commerce and the Department of the Treasury of the United States of America released new limitations on non-family travel to Cuba.   
  23. In Denmark, the Social Democratic Party won the parliamentary elections held last Wednesday.    
  24. The Minister of Local Government and Rural Development of Ghana, Hajia Alima Mahama, set December 29 as the day for a referendum on the election of Chief Executive Officers of Metropolitan, Municipal and District Assemblies.
  25. The Lower House of Brazil passed a constitutional amendment that grants Congressmembers more control over public spending.

New Scholarship

  1. Kristīne Krūma & Sandijs Statkus, The Constitution of Latvia – A Bridge Between Traditions and Modernity, in Anneli Albi & Samo Bardutzky (eds.), National Constitutions in European and Global Governance: Democracy, Rights, the Rule of Law (2019) (analyzing the amendments introduced to the Constitution of Latvia in 1996 and 1998, and discussing the role of the Constitutional Court thereafter)
  2. Helena Alviar García, Neoliberalism as a form of authoritarian constitutionalism, in Helena Alviar García & Günter Frankenberg (eds.), Authoritarian Constitutionalism: Comparative Analysis and Critique (2019) (arguing that the term “authoritarian constitutionalism” should encompass the set of provisions that fix neoliberal orthodoxy as the only policy choice available to public officials)
  3. Alison L Young, Populism and Parliamentary Sovereignty: The Goldsworthy Solution, in Lisa Burton Crawford, Patrick Emerton & Dale Smith (eds.), Law Under a Democratic Constitution. Essays in Honour of Jeffrey Goldsworthy (2019) (claiming that Jeffrey Goldsworthy’s account of parliamentary sovereignty may be better able to ensure that referendums do not provide a means for populist movements to destabilize democracy)
  4. Richard Albert, Carlos Bernal & Juliano Zaiden Benvindo (eds.), Constitutional Change and Transformation in Latin America (2019) (exploring the complexity of the vast topography of constitutional developments, experiments and perspectives in Latin America, offering a deep understanding of modern constitutional change in the region, and evaluating its implications for constitutionalism, democracy, human rights and the rule of law)
  5. Bríd Ní Ghráinne & Aisling McMahon, Abortion in Northern Ireland and the European Convention on Human Rights: Reflections from the UK Supreme Court, International & Comparative Law Quarterly (2019) (critically assessing the Supreme Court of the United Kingdom’s treatment of international law and the European Convention on Human Rights in review of the abortion ban in Northern Ireland )
  6. Mikael Madsen, Resistance to the European Court of Human Rights: The Institutional and Sociological Consequences of Principled Resistance, (2019 forthcoming) (exploring the sociological dimensions of resistance to international courts, the paper suggests that what in practice ends up as principled resistance to the ECtHR does not necessarily involve higher order normative clashes in a legal sense)
  7. Juan Sebastián Villamil Rodriguez, The Internationalization of Judicial Review in the Colombian High Courts, Constitutional Review (2019) (examining the influence of Inter-American Law on Colombian Apex Court’s adjudication, and discussing how the relationship of national judiciaries with international law is best understood as reflecting the development of a pluralist legal dynamic)
  8. Cláudia Ribeiro, Mercedes Araújo & Sónia Rodrigues, The legislative role of Iberian parliaments, in Jorge M. Fernandes & Cristina Leston-Bandeira (eds.), The Iberian Legislatures in Comparative Perspective (2019) (analyzing and assessing the performance of the legislative process in Spain and Portugal, and reflecting on a number of initiatives aimed at making the legislative process more transparent and accessible)
  9. Sharon Yadin, Saving Lives Through Shaming, Harvard Business Law Review Online (2019) (suggesting new ways for the Occupational Safety and Health Administration to harness regulatory shaming to reduce workplace injuries, and developing the theory of regulatory shaming)
  10. Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade’s Whiplash, Texas Law Review (2019 forthcoming) (trying to estimate the level of doctrinal instability that would ensue with the introduction of term limits for justices of the U.S. Supreme Court)
  11. William Phelan, Great Judgments of the European Court of Justice: Rethinking the Landmark Decisions of the Foundational Period (2019) (offering a fresh look at the ECJ’s famous early judgments in the light of comparative analysis and the writings of influential French ECJ judge, Robert Lecourt)
  12. Nicola Lacey, Populism and the Rule of Law (2019) (examining the ways in which contemporary populist discourse challenges the rule of law and assessing how many of the factors producing “penal populism” or “overcriminalization” are truly a product of populism)
  13. Jens Theilen, Subversion Subverted: Developments in German Civil Status Law on the Recognition of Intersex and Non-Binary Persons, in Eva Brems, Toon Moonen & Pieter Cannoot (eds.), Protecting trans* rights in the age of gender self-determination (2019 forthcoming) (exploring various possible rationales behind the expansion, in German Law, of legal gender markers beyond the binary categories of “male” and “female” and their implications)

Calls for Papers and Announcements

  1. The European Journal of English Studies calls for papers for the three issues of the journal to be published in 2020. Interested scholars should submit their contributions by October 31, 2019.
  2. The African Network of Constitutional Lawyers (ANCL) in collaboration with the University of Nairobi, School of Law, the Konrad-Adenauer-Stiftung (Rule of Law Program for Sub Saharan Africa), the Democratic Governance & Rights Unit at the University of Cape Town and the Faculty of Law at Stellenbosch University invite interested scholars, researchers and lawyers to submit abstracts and panel proposals for its upcoming biennial conference in 2020. The deadline for submissions is July 31, 2019.
  3. Yale Law School invites submissions from current doctoral candidates and recent doctoral graduates for its Ninth Annual Doctoral Scholarship Conference to be held on November 8-9, 2019. The deadline for submissions of abstracts is July 8, 2019.
  4. The Association of American Law Schools (AALS) Section on Legal History announces a call for papers for its section program, which will be held during the 2020 AALS Annual Meeting in Washington, DC. The program is entitled “A Century of Women’s Suffrage.” Submissions must be sent by July 31, 2019.
  5. The National University of Singapore (NUS) calls for applicants from ASEAN universities and research institutes who are interested in its NUS Fellows Program (Southeast Asia). The deadline to send applications is June 30, 2019, but early applications are strongly encouraged.
  6. The Department of Government at the University of Texas at Austin welcomes graduate student submissions for the sixth annual Graduate Conference in Public Law, to be held on October 24-25, 2019. Proposals must be sent by August 15, 2019.   
  7. The University of New South Wales (UNSW) Law School invites candidates to apply for a PhD Scholarship under the supervision of Profs. Rosalind Dixon, Theunis Roux and Melissa Crouch. The topic is “A Liberal Response to Populist Constitutionalism.”
  8. UCL Faculty of Laws organizes a conference on “Foundational Concepts in Constitutional Theory,” which will take place on July 10-12, 2019. This conference will be the occasion for discussing the first set of papers to be included in a major forthcoming volume, The Cambridge Handbook of Constitutional Theory (CUP, forthcoming 2021).
  9. The Law Faculty of Maastricht University convenes a conference on “National constitutional identity 10 years on,” to be held on June 24-25, 2019. This event aims to offer a reflection on the use of the National constitutional identity clause ten years after the entry into force of the Lisbon Treaty.
  10. The International Association of Constitutional Law Research Group on Constitutional Interpretation invites submissions for an international conference on “Constitutional interpretation in European populist regimes ‒ new methods or old tools for new purposes?,” to be held in Budapest, on December 5-6, 2019. Interested scholars should send an abstract of no more than 500 words by July 31, 2019.
  11. Melbourne Law School cordially invites interested person to attend its forthcoming “Centre for Comparative Constitutional Studies 2019 Constitutional Law Conference.” This conference will be held at Melbourne Law School on Friday July 26, 2019.
  12. UCL Faculty of Laws funds two three-year PhD studentships to commence in 2019/2020 in the following areas: The Philosophical Foundations of Contractual Duress, Copyright Law and the Challenges of the Digital Age, and Non-Appearance before International Courts and Tribunals. Applications must be submitted by July 4, 2019.    

Elsewhere Online

  1. Edward Lemon, Authoritarian Influence in International Organizations: The Case of Interpol, Power 3.0
  2. Başak Çalı, No Going Nuclear in Strasbourg. The Infringement Decision in Ilgar Mammadov v. Azerbaijan by the European Court of Human Rights, Verfassungsblog
  3. Priya Pillai, Enforced Disappearances: A Global Scourge, Increasingly Under the Radar, OpinioJuris
  4. Lénárd Sándor interviewed Professor Thomas Berg who spoke about the relation between law and religion: “Human dignity is at the core of Catholic legal education” conversation with Thomas C. Berg, Precedens.Mandiner   
  5. Alan Renwick, Taking stock: what have we learned from the European elections? The Constitution Unit
  6. Ander Errasti-Lopez, Basque Country and Catalonia: Different Paths to Recognition, Centre on Constitutional Change
  7. Laurent Pech, Vlad Perju & Sébastien Platon, How to Address Rule of Law Backsliding in Romania, Verfassungsblog
  8. Sami Abdelhalim, The Need for a Transitional Constitutional Framework for Post-al Bashir’s Sudan, ConstitutionNet
  9. Yangyang Cheng, Four Is Forbidden. Finding My Way to the Truth about Tiananmen, ChinaFile
  10. Graham Fox & Daniel Béland, Federal-provincial tensions loom over 2019 campaign, Policy Options
  11. Konrad Lachmayer & Lukas Wieser, Entering into New Constitutional Territory in Austria. From a Conservative Minority Government to a Transitional Expert Government, Verfassungsblog
  12. Lynda Collins, The Unwritten Constitutional Principle of Ecological Sustainability: A Lodestar for Canadian Environmental Law? IACL-AIDC Blog
  13. Peter Gregoire, Deciding Which “Traditional Rights” Are Constitutionally Protected in Hong Kong: The Role of Judicial Review, Admin Law Blog
  14. Insa Koch, Everyday authoritarianism: an anthropology of citizenship and welfare in austerity Britain, LSE British Politics and Policy
  15. Anjana Prakash, The Gogoi Case And After: Wake Up Call For Indian Judiciary, LiveLaw.in
  16. Gilbert Achcar, The seasons after the Arab Spring, Le Monde diplomatique
Print Friendly
Published on June 10, 2019
Author:          Filed under: Developments
 

I-CONnect Virtual Roundtable: Wojciech Sadursky on “Poland’s Constitutional Breakdown” (OUP 2019)

Richard Albert, William Stamps Farish Professor of Law, The University of Texas at Austin and David Landau, Mason Ladd Professor of Law and Associate Dean, Florida State University


In this Virtual Book Roundtable at I-CONnect, we engage in conversation with Wojciech Sadursky on his brand new book–just published last month–entitled Poland’s Constitutional Breakdown (OUP 2019).

The book is the first in the new Oxford Series in Comparative Constitutionalism, co-edited by Richard Albert and Robert Schütze (Durham). Future books in the Series have been contracted with Ran Hirschl (Toronto/Göttingen), Silvia Suteu (UCL), and Bui Ngoc Son (CUHK).

The full interview runs for 26 minutes. It is available below and also here.

Print Friendly
Published on June 5, 2019
Author:          Filed under: Developments
 

What’s New in Public Law

Davide Bacis, PhD Student in Constitutional Law, University of Pavia (Italy)

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

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

Developments in Constitutional Courts

  1. The US Supreme Court held 7-2 that if the police can show probable cause, the arrest cannot be regarded as a retaliation for exercising free speech.
  2. The US Supreme Court upheld the Indiana abortion law that mandates clinics to bury or cremate fetal remains, while staying the 7th US Circuit Court of Appeals decision banning the prohibition on abortions motivated by race, sex or disability.
  3. The European Court of Human Rights ruled that Spanish judges did not violate the rights of Catalan secession leaders.
  4. The Court of Justice of the European Union held that German public prosecutors lack the required independence to issue European arrest warrants.
  5. The Constitutional Court of Ukraine will determine the form of constitutional proceedings regarding the presidential decree dissolving Parliament.

In the News

  1. The President of Austria appointed Brigitte Bierlein, the President of the Constitutional Court, as Chancellor. Bierlein would have left the office at the end year because of the 70-year compulsory retirement age for constitutional judges.
  2. The EU Commission requested Italy to provide clarifications on the lack of progress regarding debt reduction.
  3. Following the European Parliament elections, the European People’s Party, the S&D, the Liberals and the Green party are focused on the appointment of the President of the EU Commission.
  4. The UK Prime Minister resigned and will leave office on June 7, 2019.
  5. The governor of Louisiana signed a bill banning abortion after the first six weeks into law.
  6. President Trump announced new tariffs on all goods coming from Mexico in an effort to solve the immigration problem.
  7. Egils Levits, a judge of the Court of Justice of the European Union, has been elected President of Latvia by the Parliament.
  8. The Supreme Court of Ireland denied Facebook a request to halt the referral to the Court of Justice of the European Union on the transfer of EU citizens’ data to the US.

New Scholarship

  1. Tawhida Ahmed and Elaine Fahey, On Brexit: Law, Justices and Injustices (2019 forthcoming) (exploring the variety of methodological approaches within the legal field to Brexit and outlining why the phenomenon is challenging to explore)
  2. Petra Bárd and Anna Śledzinska-Simon, Rule of law infringement procedures. A proposal to extend EU’s rule of law toolbox, CEPS Papers in Liberty and Security in Europe (2019) (proposing a “rule of law infringement” procedure that has both a fast-track and a freezing component, as a tool to effectively address rule of law violations by Member States in the European Union)
  3. William Partlett, Criminal Law and Cooperative Federalism, 56 American Criminal Law Review (2019) (arguing that cooperative federalism, largely resorted to in drug and gun crimes in the US, presents a variety of constitutional issues by both threatening constitutional rights of the individual and by weakening states’ ability to operate as political entities)
  4. Jeremy Pilaar, Assessing the Gig Economy in Comparative Perspective: How Platform Work Challenges the French and American Legal Orders, 27 Journal of Law and Policy (2019) (analyzing whether platform work amounts to a challenge for the legal system by means of two comparative theories elaborated within the French and the US legal systems)
  5. Richard M. Re and Alicia Solow-Niederman, Developing Artificially Intelligent Justice, Stanford Technology Law Review (2019 forthcoming) (examining the potential effects AI might have on judicial adjudication, especially in those areas where “equitable justice” or discretionary judgments are vital)
  6. Laura Grenfell, Legal Pluralism and the Rule of Law in East Timor, 19 Leiden Journal of International Law (2019) (arguing that legal pluralism must be properly turned in favor of the establishing of the rule of law in transitional countries, of which East Timor represent a fitting example)
  7. Nicholas W. Barber, Populist Leaders and Political Parties, 20 German Law Journal (2019) (reflecting on the interaction between populism and political parties, arguing that political parties should act as a medium between politics and the people and that populism represents a threat to their proper functioning)
  8. Anna Jonsson Cornell and Marco Goldoni, National and Regional Parliaments in the EU-Legislative Procedure Post-Lisbon. The Impact of the Early Warning Mechanism (2019) (examining the new role of national parliaments in the EU legislative procedures and how this new role has impacted on their relationship with EU institutions)
  9. Mtendeweka Owen Mhango, Justiciability of Political Questions in South Africa: A Comparative Analysis (2019) (arguing that South African courts should develop a political question doctrine in comparison to the US, Ghana, Uganda and Nigeria)
  10. Jeff King, The Democratic Case for a Written Constitution, Current Legal Problems (2019) (setting out the democratic case for a written constitution and contrasting it with the rights-based and clarity-based cases)

Call for Papers and Announcements

  1. The City Law School invites interested participants to the 2019 Global Law Research Dialogue Series that will be held on June 18, July 3 and July 16, 2019 in London.
  2. The Gilbert + Tobin Centre of Public Law, University of New South Wales, welcomes submissions for its 2019 Postgraduate Workshop in Public Law, to be held in Sydney on September 23-24, 2019. Abstract of no more than 400 words should be submitted by July 31, 2019.
  3. Yale Law School welcomes submissions for its 9th Annual Doctoral Scholarship Conference, to be held in New Haven, Connecticut, on November 8-9, 2019. To apply, abstracts of up to 1500 words and a brief biographical note must be submitted by July 8, 2019.
  4. The University of Salerno (Italy) welcomes application for its Jean Monnet Summer School on Human Rights and Health that will take place in Salerno, on July 1-5 2019.
  5. The Law and Practice of International Courts and Tribunals (published by Brill) welcomes submissions for the Rosalyn Higgins Prize. Unpublished articles between 6500 and 8000 words should be submitted by August 31, 2019.
  6. The University College of London invites participation to the Conference: Foundational Concepts in Constitutional Theory, that will take place on July 10-12, 2019.
  7. Bocconi University (Milan, Italy), invites participation to the 2019 IACL Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law,” that will take place on June 13-14, 2019.
  8. The National Research University (Moscow) welcomes submissions for the Conference on “Jurisdictional Immunities of States and Their Property: Emergence of New International Customary Law Rules – by Whom?” that will take place on October 3-4, 2019. Abstracts of 400-600 words, alongside a CV, must be submitted by July 1, 2019.
  9. The T.M.C. Asser Institute, the Centre for the Law of EU External Relations (CLEER) and the ESIL Interest Group on the EU as a Global Actor invite submissions of abstracts for a workshop on “EU Trade Agreements and the Duty to Respect Human Rights Abroad,” that will take place in The Hague, on December 11, 2019. Abstracts of max 500 words must be submitted by July 15, 2019.

Elsewhere Online

  1. David R. Cameron, European Council takes stock of Parliament election, starts selection of new EU leaders, Yale Macmillan Center
  2. Bertil Emrah Oder, A Do-Over for Istanbul: Gripping Electoral Law and Democratic Resilience, Verfassungsblog
  3. Or Bassok and Ruth Gavison, It’s not the Supreme Court’s job to fix the Nation-State Law, The Times of Israel
  4. Başak Çalı, No Going Nuclear in Strasbourg. The Infringement Decision in Ilgar Mammadov v. Azerbaijan by the European Court of Human Rights, Verfassungsblog
  5. Mark Dawson, Should the EU Think Twice Before Dumping its Spitzenkandidaten?, Verfassungsblog
  6. Yurika Ishii, The Distinction between Military and Law Enforcement Activities: Comments on Case Concerning the Detention of Three Ukrainian Naval Vessels (Ukraine v. Russian Federation), Provisional Measures Order, EJIL: Talk!
  7. Eleni Frantziou, Administrative Formalities and Collective Disenfranchisement: The Situation of EU Citizens in the UK #DeniedaVote during the European Parliament Elections 2019, UK Constitutional Law Blog
  8. Matt Floro and Jasper Brown, Judicial Review and Inferences about Briefing Notes, AUSPUBLAW
  9. Vanessa MacDonnell, Se-shauna Wheatle, Contemporary Perspectives on Unwritten Constitutional Principles, IACL-AIDC Blog
  10. Kate Glover Berger, The Demands of Unwritten Constitutionalism on Institutional Design, IACL-AIDC Blog
Print Friendly
Published on June 3, 2019
Author:          Filed under: Developments
 

The Supreme Court of Chile as an Inter-American Tribunal

–Jorge Contesse, Assistant Professor of Law, Rutgers Law School

The Grand Chamber of Chile’s Supreme Court recently declared that criminal convictions against indigenous leaders obtained under Chile’s terrorist statute “have ceased to have effects,” as direct result of a decision by the Inter-American Court of Human Rights.[1]  In 2014, the Inter-American Court found that the convictions of such indigenous leaders had violated several human rights of petitioners,[2] and ordered the state to adopt “all the administrative, judicial, or any other type of measures required to nullify all the effects of the criminal judgments.”[3] 

Chile’s Supreme Court’s decision is unprecedented.  It is the first time that the Grand Chamber explicitly endorses the view that “national judges are part of the inter-American human rights system,”[4] a position that the Inter-American Court has fervently advanced, for instance, through the creation of doctrines such as conventionality control.[5]  However, the way the Inter-American Court has articulated such doctrines, purporting to exercise constitutional authority over states, is problematic, as it is for domestic authorities, not international courts, to decide on the rank and place of international law at the domestic level.[6]  That is precisely what the Supreme Court has done in this case.

Read the rest of this entry…
Print Friendly
Published on June 1, 2019
Author:          Filed under: Developments
 

Call for Nominations–Mark Tushnet Prize in Comparative Law

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

In my capacity as Chair of the AALS Section on Comparative Law, I have created a new award to recognize untenured scholars at AALS Member Schools for excellence in comparative law. I invite our readers to submit nominations for the award, which will be named the “Mark Tushnet Prize in Comparative Law.” Self-nominations are welcome as well. The Call for Nominations follows below.


Mark Tushnet Prize in Comparative Law

Call for Nominations

The AALS Section on Comparative Law is pleased to announce the inaugural “Mark Tushnet Prize” to recognize scholarly excellence in any subject of comparative law by an untenured scholar at an AALS Member School.

The Prize will be given to the author(s) of a scholarly article judged to have made an important contribution in the field of comparative law. This article must have been published in an academic journal between July 1, 2018 and June 30, 2019.

The Prize will be awarded for the first time at the 2020 AALS Annual Meeting, scheduled for January 2-5, 2020. It will be awarded every year thereafter. All untenured scholars—including but not limited to tenure-track professors, visiting assistant professors, lecturers, academic fellows, doctoral candidates—are eligible.

Nominations should be sent by email to Trish Do (tdo@law.utexas.edu) no later than 12:00pm Central time on August 1st, 2019. Nominations should include the full name, institutional affiliation, and contact information for the nominated scholar, in addition to a PDF version of the published article to be considered for the Prize. Self-nominations are welcomed.

For all questions, please contact Professor Richard Albert (richard.albert@law.utexas.edu), Chair of the AALS Section on Comparative Law.

Prize Committee

  • Richard Albert (Texas) (Chair)
  • Mark Kende (Drake)
  • Margaret Woo (Northeastern)

About Mark Tushnet

Mark Tushnet, a former president of the Association of American Law Schools, is the William Nelson Cromwell Professor of Law at Harvard Law School. A former law clerk to Justice Thurgood Marshall, Tushnet is an authoritative voice in constitutional law and theory. His scholarship spans all areas of public law, including comparative constitutional law, a field in which he has co-authored a leading casebook. A respected teacher, a devoted mentor, and an influential scholar, he will retire from the Harvard faculty in June 2020.

About the AALS

The Association of American Law Schools (AALS) is a 501(c)(3) nonprofit association of 179 law schools. Its members enroll most of the nation’s law students and produce the majority of the country’s lawyers and judges, as well as many of its lawmakers. The mission of AALS is to uphold and advance excellence in legal education. In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities–local, national, and international. Founded in 1900, AALS also serves as the learned society for the more than 9,000 law faculty at its member schools, and provides them with extensive professional development opportunities, including the AALS Annual Meeting which draws thousands of professors, deans and administrators.

Print Friendly
Published on May 29, 2019
Author:          Filed under: Developments
 

The Slovak Party Ban Case in Context: Dialogue between the Supreme and Constitutional Courts

Max Steuer, Comenius University

The failed petition of the Slovak Attorney General to ban the far-right Kotleba: People’s Party Our Slovakia received wide domestic and international coverage. Legal developments in early 2019 that might have influenced the Supreme Court ruling in the case, however, did not attract attention. In January, the Slovak Constitutional Court invalidated several provisions of the Criminal Code meant to increase the efficiency of the prosecution of extreme speech. I will examine this decision to see if it could have constrained the decision-making of Supreme Court judges in the Party Ban Case.

This area of criminal law is among those most prone to politicization given that it is often a component of the official policy against political extremism. Slovakia is the only country in the Visegrad region that has not been criticized for the deterioration of the rule of law, and one where extreme far-right entered the Parliament relatively recently. The legal developments in Slovakia, therefore, provide a good opportunity to study how a democracy challenged by anti-democratic forces employs legal means to respond to the challenge.

Read the rest of this entry…
Print Friendly
Published on May 28, 2019
Author:          Filed under: Analysis
 

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 US Supreme Court held that the Crow Tribe’s treaty hunting rights did not expire when Wyoming became a state.

(2) The US Supreme Court ruled that a trademark may survive a debtor’s rejection in bankruptcy.

(3) The Constitutional Court of Germany ruled that the ban on broadcasting the Neo-Nazi Party campaing advertisement infringes the right to campaign.

(4) The Thai Constitutional Court is set to decide a case against a political leader regarding media shareholdings violations.

(5) The General Court of the EU rejected an action for compensation against the European Central Bank (ECB) by private investors.

In the News

(1) The Parliament of Taiwan approved a bill legalizing same sex-marriage in the country.

(2) The US administration announced an immigration and border reform proposal.

(3) The lower house of the Irish Parliament rejected a proposal to call a referendum on recognizing the right to housing as a constitutional right.

(4) The Senegalese President ratified a constitutional law abolishing the post of prime minister.

(5) Speaker of the National Assembly of Zimbabwe vowed to renew parliamentary gender quotas.

(6) The US House of Representatives passed the Equality Act that prohibits discrimination on the basis of sexual orientation.

New Scholarship

(1) Oona A. Hathaway, A Comparative Foreign Relations Law Agenda: Opportunities and Challenges (2019) (arguing how best to carry out a more comprehensive examination of differences between states in the law governing their engagement in the world around them)

(2) Cheng-Yi Huang, Frozen Trials: Political Victims and Their Quest for Justice in Taiwan, in Jerome A. Cohen, William P. Alford, Chang-fa Lo (eds.), Taiwan and International Human Rights: A Story of Transformation (forthcoming 2019) (analyzing the critical shortcomings and potential benefits of Taiwan’s model of transitional justice)

(3) Vincenzo Zeno-Zencovich, Comparative Legal Systems: A Short and Illustrated Introduction, 5 L’Unità del diritto (2019) (providing an introduction to comparative law and comparative legal systems)

(4) Monika Zalnieriute, Lyria Bennett Moses and George Williams, The Rule of Law and Automation of Government Decision‐Making, 82 The Modern Law Review (2019) (exploring the tension between the rule of law and rapid technological change and concludes with observations on how the automation of government decision‐making can both enhance and detract from rule of law values)

(5) John Vlahoplus, Evaluating Originalism: Commerce and Emoluments, St. John’s Law Review (forthcoming 2019) (examining originalism and notable originalist interpretations of the Constitution’s Commerce and Emoluments Clauses in light of the novel and traditional English interpretive methods)

(6) Khaled Beydoun and Cyra Akila Choudhury, Islamophobia and the Law: Introduction, in Cyra Akila Choudhury & Khaled A. Beydoun, Islamophobia and the Law (forthcoming 2019) (providing a brief history of the rise of the concept of Islamophobia and legal definition for it)

(7) Nupur Chowdhury, Privacy and Citizenship in India, 11 NUJS Law Review (2018) (conceptualizing the relationship between state-citizen-intermediaries into relationship typologies in order to better appreciate the cumulative impact of these relationships and also help understand the commissions and omissions of the State in relation to data protection)

(8) Kevin Crow, International Law and Corporate Participation in Times of Armed Conflict, 37 Berkeley Journal of International Law (2019) (exploring the overlapping conceptions of “international legal personhood” in international criminal law and international investment law in light of the December 2016 ICSID Award in Urbaser v. Argentina)

(9) Han-Ru Zhou, The Continuing Significance of Dr Bonham’s Case, in Paul Daly (ed.), Apex Courts and the Common Law (2019) (re-examining the historical—or historically assumed—relationship between Dr Bonham’s Case and modern judicial review of legislation)

Calls for Papers and Announcements

(1) The European Society of International Law (ESIL) organizes its second joint symposium in collaboration with the Court of Justice of the European Union. The symposium will be held in Luxembourg, on June 14, 2019, on the theme “Adjudicating the International Responsibility of the EU.”

(2) The University of Utrecht invites application to three of its 2019 International Law Summer Courses.

(3) The Faculty of Legal and Social Sciences, the Law Program of the University of Caldas, the Advisory Committee of the Colombia Chapter of ICON-S and the Organizing Committee of the II ICON-S Colombia Seminar call for proposals for a seminar on the Colombia Chapter of the International Society of Public Law ICON-S.

(4) The Indian Review of Corporate and Commercial Laws (IRCCL) invites submissions for its upcoming issue.

(5) The Indian Journal of Constitutional Studies invites submissions for its upcoming volume.

(6) The American Journal of Legal History invites applications for the position of  a new co-Editor-in-Chief.

(7) The Italian Journal of Public Law (IJPL) organizes a symposium on the theme “The Rule of Law,” to be held on May 30-31, 2019, at the University of Milan.

Elsewhere online

(1) Adam Liptak, Keith Whittington, and Jeffrey Rosen, Are we in a Constitutional Crisis?, Constitution Center

(2) Jedediah Britton-Purdy, A Trumpist Constitution?, Dissent

(3) Robert Natelson, The Supreme Court Just Applied Originalism to an 1855 Treaty, So Why Not to the Constitution?, The Daily Caller

(4) Brian Christopher Jones, How the US Constitution Failed to Restrain Donald Trump, The Conversation

(5) Julie Zerbo, The Supreme Court’s Decision in Mission Product Holdings is Significant for the Bankruptcy-Prone Fashion Industry, The Fashion Law

(6) David R. Cameron, With Tory voters defecting in droves to Brexit party and time running out on her leadership, Theresa May proposes “new Brexit deal” before one last vote, Yale MacMillan Center

Print Friendly
Published on May 27, 2019
Author:          Filed under: Developments
 

What’s New in Public Law

Sandeep Suresh, Faculty Member, Jindal Global Law School, India

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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Germany found that a regional public broadcaster must air campaign advertisements of the far-right National Democratic Party for European elections. The Court held that there was no evidence to prove that the content of the advertisement was racially motivated and amounted to hate speech.
  2. The Supreme Court of India upheld the constitutionality of a legislation passed by Karnataka state that granted reservation for promotions of government staff members who fall in the category of scheduled caste and scheduled tribes.
  3. The UK Supreme Court held that decisions of the Investigatory Powers Tribunal are subject to judicial review in the High Court based on its supervisory jurisdiction over lower courts and tribunals.
  4. The Supreme Court of Canada will conduct a sitting in the Manitoba Court of Appeals, Winnipeg, in September 2019. This will be the first sitting of the Supreme Court outside Ottawa.
  5. The Constitutional Court of Guatemala ruled that Thelma Aldana, former Attorney General with a strong anti-corruption agenda, cannot run for the presidential election in June 2019.

In the News

  1. For the first time in its history, the Ukrainian Constitutional Court confirmed the early dismissal of a sitting Chairperson of the court,  Judge Stanislav Shevchuk, for gross neglect of duties.
  2. Justice Madan Lokur, former judge of the Indian Supreme Court, was appointed to the Fiji Supreme Court’s non-resident panel.
  3. Prime Minister of Israel Benjamin Netanyahu proposed a law that would extensively limit the Supreme Court’s judicial review powers.
  4. A court in Northern Cyprus acquitted two journalists who were accused of defaming Turkish President Erdogan by circulating a cartoon that portrayed a Greek statute urinating on Erdogan’s head.
  5. Senegal adopted a constitutional amendment to abolish the post of Prime Minister and make the country’s governance system fully presidential.
  6. The Parliament of Taiwan passed a law that legalizes same-sex marriage. This move comes after the decision of the Constitutional Court in 2017 regarding the same.

New Scholarship

  1. Jordan Perkins, Thinking Institutionally About Judicial Review: Originalism, Judicial Supremacy, and the Concept of Law (2019) (examining the origin and interpretation of originalism as a judicial philosophy in America)
  2. Juan C. Herrera, Judicial Dialogue and Transformative Constitutionalism in Latin America: The Case of Indigenous Peoples and Afro-descendants, Revista Derecho del Estado (2019) (describing the transformative nature of jurisprudence of the Inter-American Court of Human Rights and the Constitutional Court of Colombia on rights of indigenous peoples and afro-descendants)
  3. Mario Iannella, Balanced Budget Objectives and the Role of Executives: The cases of Italy, Spain and US states, Rivista AIC (2019) (arguing that the introduction of balanced budget objective and vertical integration of national and supranational levels after the financial crisis to increase the role of the executive)
  4. Matteo Laruffa, The Institutional Defenses of Democracy, Democrazia e Diritto (2018) (assessing the institutional defenses in democracies to fight against political pressure)
  5. Stuart Wallace, The Application of the European Convention on Human Rights to Military Operations (2019) (examining the challenges to the integrity and universality of rights under the European Convention on Human Rights at the time when the Convention is increasingly applied to military operations)
  6. Tom Flynn, The Triangular Constitution: Constitutional Pluralism in Ireland, the EU and the ECHR (2019) (using the case of Ireland to demonstrate a national constitution can no longer be understood on its own, in isolation from the EU legal order or the European Convention on Human Rights)

Call for Papers and Announcements

  1. The Colombia Chapter of ICON-S invites submissions for its conference at the Universidad de Caldas in Manizales, Colombia, on October 24-25, 2019.
  2. The Indonesian Constitutional Court invites paper submissions for its 3rd International Symposium on “Constitutional Court and Protection of Social and Economic Rights,” which will be held in Bali, on November 4-8, 2019. Interested participants must submit full-length papers (8000-10,000 words) by August 18, 2019. Selected articles from the Symposium will be published in the special issue of the Court’s academic publication – Constitutional Review Journal.
  3. The Laureate Program in Comparative Constitutional Law, at Melbourne Law School invites applications from junior scholars, post-doctoral fellows, and leading senior scholars for the “Melbourne Institute of Comparative Constitutional Law,” which will meet on December 9-11, 2019. The initiative aims to develop the study of comparative constitutional law through exchange between leading and emerging scholars in the field. The deadline for applications is August 11, 2019.
  4. The Democratic Decay Resource (DEM-DEC), which has been renamed Democratic Decay & Renewal (DEM-DEC), released its tenth Global Research Update on democratic decay (May 2019 – available here), containing new research worldwide from April and early May 2019; items suggested by DEM-DEC users; a rapidly expanding list of forthcoming research; and a list of new resources added to the Links section. A post introducing the Update will be published on the IACL-AIDC Blog on Monday 20 April, and will shortly be published on Verfassungsblog.
  5. The Forum Transregionale Studien and Democracy Reporting International invite applications for fellowships on “re:constitution: Exchange and Analysis on Democracy and the Rule of Law in Europe.” This paid fellowship is aimed at young scholars of constitutional law from EU member states and will last from October 1, 2019, until July 31, 2020. Interested participants should apply by June 1, 2019.
  6. The University of Bologna, King’s College, London, and the University of Strasbourg invite applications for the 19th edition of the Summer School on “The Protection of Fundamental Rights in Europe,” which will be held in Bertinoro, on June 23-28, 2019. The deadline for applications is June 12, 2019.
  7. Loyola University Chicago School of Law invites submissions for its 10th Annual Constitutional Law Colloquium, to be held on November 8-9, 2019. The deadline for the submission of abstracts is June 21, 2019.

Elsewhere Online

  1. Dushyant Dave, Collegium – Thy name is Reciprocity, Bar & Bench
  2. Yaniv Roznai, Constitutional Paternalism: The Israeli Supreme Court as Guardian of the Knesset, IACL-AIDC Blog
  3. Idris Fassassi, France: The Yellow Vests, the Right to Protest and the Conseil Constitutionnel, ConstitutionNet
  4. Dominika Bychawska-Siniarska, Offence Intended – Virgin Mary With a Rainbow Halo as Freedom of Expression, Verfassungsblog
  5. B Aloka Wanigasuriya, Ten Years Later: Seeking Justice for Wartime Atrocities in Sri Lanka, Justice in Conflict
  6. Gautam Bhatia, The Supreme Court and Memes, Indian Constitutional Law and Philosophy
  7. Paolo Cavaliere, Facebook, defamation and free speech: a pending CJEU case, EU Law Analysis
  8. Ronan Ó Fathaigh and Dirk Voorhoof, Kablis v. Russia: prior restraint of online campaigning for a peaceful, but unauthorised demonstration violated Article 10 ECHR, Strasbourg Observers
  9. Brian Christopher Jones, How the US Constitution Failed to Restrain Donald Trump, The Conversation
Print Friendly
Published on May 20, 2019
Author:          Filed under: Developments
 

Call for Papers–Football Feminism–Global Governance Perspectives

The Symposium

The Jean Monnet Center for International and Regional Economic Law and Justice at NYU School of Law will host a symposium on February 24 – 25, 2020 to explore feminist perspectives on global football (soccer) governance and the Fédération Internationale de Football Association (FIFA).

Last year, FIFA launched a Women’s Football Strategy to “empower the organisation to take further concrete steps to address the historic shortfalls in resources and representation, while advocating for a global stand against gender discrimination through playing football.” This plan for institutional reform, along with the 2019 Women’s World Cup, offers an opportune moment to think critically about the future of world football from various feminist perspectives. The Symposium therefore seeks to explore the system of governance that regulates football around the globe through the lens of gender and to consider what it would mean for global football governance to be feminist.

Women and girls have been playing and otherwise participating in organized football since at least the late 19th century, before the 1904 establishment of FIFA as the sole recognized international governing body for the ‘beautiful game’. However, FIFA did not officially hold a Women’s World Cup until 1991 and did not elect a woman to its Executive Committee (as it then was) until 2012. In other words, football under the auspices of FIFA has long been a male-dominated sphere, into which women have only recently begun to gain formal entry – first as athletes and then as executives. The longstanding gendered nature of global football governance is therefore easily perceptible.

The Symposium will aim to illuminate and nuance the relationship between gender and power within the transnational regulatory system that governs football (with FIFA at its helm); to identify specific gendered implications of existing governance structures, rules and procedures; and to consider innovative ideas for feminist reform or revolution. Approaches may be explicitly feminist – of any strand (e.g. radical, intersectional, postcolonial) or theoretical orientation (e.g. historical institutionalism, critical legal theory) – or they may simply use gender as a mode or lens of analysis, including in connection with race, sexuality, nationality, geography, religion, class, etc. The commonality across approaches will be the critical evaluation of a politically, economically and culturally powerful global governance regime from the perspective of gender.

Submissions may address any aspect of the governance of the women’s game, the men’s game or both. Likewise, they may focus on the role of any actor(s) within the global football governance regime (e.g. FIFA and its various internal bodies, regional confederations, national associations, clubs, leagues, host countries, sponsors, broadcasters, players, coaches) or the relations between them. Papers may tackle questions of gender and governance related to, for example:

  • Representation in football executive leadership, coaching and officiating
  • Investment in, promotion of, and opportunities and rewards for women’s teams and players
  • Professionalization, commercialization and corruption of football
  • Public and private influences on global football governance (e.g. national governments, corporations, civil society organizations)
  • Sexual harassment and abuse, gender-based violence and homophobia in football or committed outside football by members of the ‘football family’
  • FIFA development programs or football-related migration
  • Real or potential resolution of gender discrimination claims by FIFA, national or regional courts, the Court of Arbitration for Sport or other (quasi)judicial fora
  • Experiences of fans, journalists and other football stakeholders
  • Repercussions of mega-event hosting and other local impacts of global football
  • Gender-based categorization of football competition
  • Reimagining of women’s (or non-binary) football on its own terms (without/outside FIFA)

In sum, the Symposium will endeavour to take stock of the development of the global football governance regime, to critically evaluate its present state, and to consider potential reforms or reimaginations of the system – all from a variety of feminist or gendered perspectives.

The Symposium will feature presentations by the authors of selected papers, followed by comments from designated panels of experts, including both scholars and practitioners in the field. The Symposium will be open to the public and participation will be welcomed from all in attendance. Following the Symposium, featured papers will be published as described below.

The Submission Process

Both established and early-career legal scholars (including graduate students) are invited to submit proposals to present papers addressing the symposium theme.

Anyone wishing to offer a paper should submit a working title and an abstract of no more than 300 words, along with a one-page CV, by email to michele.krech@law.nyu.edu by July 15, 2019.

The selection of abstracts will be communicated by August 1, 2019.

Each selected author will then be asked to submit a pre-paper of 2,000 to 3,000 words by November 1, 2019, on the basis of which the final selection will be made. Selected authors will be eligible for a travel and accommodation grant of up to $750 in order to attend the Symposium.

The Symposium will take place on February 24 – 25, 2020 and will function as a workshop: draft papers of approximately 6,000 words will be presented and commented upon. The aim of this format is to provide important input to authors to assist in the elaboration of their final papers. Final papers of up to 10,000 words will be published in the Jean Monnet Working Paper Series of NYU and will also be considered for publication in an edited volume by a major publisher. In addition, a selection of papers will be considered for inclusion in a European Journal of International Law (EJIL) symposium.

Print Friendly
Published on May 17, 2019
Author:          Filed under: Developments