Blog of the International Journal of Constitutional Law

The First Week of the Chilean Constitutional Convention

Lucas MacClure, Boston College

The Chilean Constitutional Convention has begun the work that will lead, one hopes, to the replacement of Pinochet’s 1980 constitution. In this piece, I summarize the Convention’s first week and highlight themes we comparativists often discuss under the banner of the optimal design of constituent assemblies.[1]

The first week of the Convention began on Sunday, July 4th, 2021, when its 155 delegates met for the first time as a collective decision-making body. The next day, the delegates of the Convention attempted to hold a new session. It was abruptly cancelled and postponed for two days due to logistical problems discussed below. The delegates resumed their work on Wednesday, July 7th, and Thursday, July 8th.

In this short week, the Convention accomplished the following five official acts: First, the delegates inaugurated the Convention. Second, the delegates elected Elisa Loncon as president and Jaime Bassa as vice-president. Third, the delegates decided they will add seven members to the Board of the Convention, for a total of nine. Fourth, the delegates agreed to create a committee in charge of proposing rules to govern the proceedings of the Convention; they also agreed on a committee of budgeting and administration and an ethics committee. Fifth, the delegates approved a declaration that asked Congress and the President to transform how the criminal justice system handles protesters indicted for involvement in the often-violent 2019 demonstrations that originated the constitution-making process.

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Published on July 15, 2021
Author:          Filed under: Analysis

New Frontiers of Gender Constitutionalism in Asia (2): Gender Identity and Sexuality

Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law

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

In this second post in the two-part series on new frontiers of gender constitutionalism in Asia, I explore the constitutional treatment of gender identity and sexual orientation in the region. Sexual and gender diverse people (SGPD) have made significant yet uneven strides in claiming equal citizenship in the constitutional arena across several Asian jurisdictions. As such, these constitutional innovations warrant detailed and context-specific comparative scrutiny.[1]

Since decolonisation, the great majority of jurisdictions in Asia have adopted in their constitutional and legal frameworks a binary classification of gender as either male or female based on sex assigned at birth, coupled with a heteronormative framing of sexuality. This position reflects a combination of colonial legal legacies (or transplants in the few Asian jurisdictions that were never colonised such as Thailand, Japan, Nepal, and Bhutan) and the cultural and religious norms of dominant groups. The uneven advancement of SGDP rights in the constitutional arena across Asia is explained by the highly context-specific nature of this phenomenon, which hinges on factors internal and external to the constitution. In particular, the strength of social movements and their ability to catalyse change in social attitude towards gender and sexual diversity have a profound impact on legal reform and – most importantly – on the everyday life of queer individuals and groups. Over the last two decades, the constitutional sphere has become both a key instrument to advance SGDP rights and a crucial symbolic target of activism in itself to affirm gender justice.

The advancement of SGDP rights in the constitutional arena can be conceptualised as taking place along two axis: removal of harm (e.g. decriminalisation of certain forms of conduct, constitutional norms and/or legislation forbidding discrimination, etc.) and the granting of positive entitlements (e.g. forms of recognition, affirmative action, quotas, etc.).

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Published on July 14, 2021
Author:          Filed under: Analysis

What’s New in Public Law

Claudia Marchese, Research Fellow in Comparative Public Law at the University of Florence (Italy)

Developments in Constitutional Courts

  1. South Africa’s Constitutional Court has found former president Jacob Zuma guilty of contempt of court and sentenced him to 15 months’ imprisonment.
  2. The U.S. Supreme Court, in a 6-3 decision, invalidated a California statute requiring charities to reveal their donors to state officials. The Court stated that the rule had a chilling effect on First Amendment rights.
  3. The U.S. Supreme Court issued a decision on 1 July 2021, ruling that neither the out-of-precinct policy nor Arizona HB 2023 violated the Voting Rights Act. Furthermore, the Court stated that the Arizona H.B. 2023 was not passed with racial discrimination intent.
  4. The Spanish Constitutional Court confirmed the sentences for the assault on the Parliament of Catalonia that took place in June 2011, thus rejecting the appeal presented by the convicted persons.
  5. On 17 July 2021, the U.S. Supreme Court upheld the Affordable Care Act in a decision that leaves the law intact and grants health care coverage for millions of Americans.

In the News

  1. The European Commission sent a letter of formal notice to Germany, the first step in infringement proceedings, concerning the German Constitutional Court’s judgment of 5 May 2020, by which it declared for the first time a judgment of the Court of Justice ultra vires and not applicable in Germany.
  2. On 29 June 2021, the French National Assembly definitively approved – with 326 votes in favour, 115 against and 42 abstentions – a bill that guarantees all women access to heterologous assisted fertilisation, hitherto reserved for heterosexual couples. Single women will also be able to access treatments.
  3. On 25 June 2021, a law authorizing euthanasia came into force in Spain. The law allows people with incurable diseases to resort to euthanasia and assisted suicide.
  4. The European Parliament adopted a resolution condemning the repression of opposition political parties in Turkey, particularly the Peoples’ Democratic Party HDP, and urged the Turkish Government to ensure that all parties can freely and fully exercise their legitimate activities in accordance with the basic principles of a pluralist and democratic system.
  5. The European Parliament adopted a resolution on breaches of EU law and of the rights of LGBTIQ citizens in Hungary.

New Scholarship

  1. O. Pollicino, Judicial Protection of Fundamental Rights on the Internet (2021) (exploring how the Internet impacts on the protection of fundamental rights, particularly with regard to freedom of speech and privacy).
  2. B.C. Jones (ed.), Democracy and Rule of Law in China’s Shadow (2021) (examining how democracy and the rule of law function in a series of jurisdictions highly influenced by China’s presence).
  3. F. Meinel, Germany’s Dual Constitution. Parliamentary Democracy in the Federal Republic (2021) (examining the German constitutional system and arguing that it can only be fully understood as a dual structure based on the administrative institutions and the parliamentary democracy).
  4. J. Webber, The Constitution of Canada. A Contextual Analysis (2021) (introducing the Canadian constitution in context).
  5. E. Arban, G. Martinico, F. Palermo (eds.), Federalism and Constitutional Law. The Italian Contribution to Comparative Regionalism (2021) (examining the relationship between central government and local institutions, taking Italy as a case study to present a comparative perspective).
  6. R. Levy, I O’Flynn, H.L. Kong, Deliberative Peace Referendums (2021) (examining examines the role of referendums amid conflict).
  7. A. Krzywón, Summary Judicial Proceedings as a Measure for Electoral Disinformation: Defining the European Standard, German Law Journal, 22, 2021 (exploring the topic of electoral disinformation in a comparative perspective).
  8. M. Tigre, A. Kasznar, A. Harrington, N. Urzola, A. Bernal, H. Evans, A. Van Der Kleyn, Las respuestas del Sistema Interamericano durante la pandemia por COVID-19: El desarrollo de los derechos humanos verdes en casos de pueblos originarios a nivel nacional y regional, Revista de Derecho Ambiental, 15, 2021 (analyzing the jurisprudence of the Inter-American Court of Human Rights in relation to the right to the environment of indigenous peoples).
  9. A. Shinar, Freedom of Expression in Israel: Origins, Evolution, Revolution and Regression, in A. Barak, B. Medina, Y, Roznai (eds.), Oxford Handbook on the Israeli Constitution (forthcoming 2021) (the essay provides an overview and critique of the protection of free expression in Israel).

Calls for papers and Announcements

  1. The Taiwan Studies Young Scholar Award (YSA) is open to applicants who are currently enrolled on a Master’s degree or PhD programme, or who are within three years of having submitted their PhD dissertation but are not currently in a full-time lectureship. Papers should correspond to ‘Isles and Exiles’, the theme of the 19th Annual Conference of the European Association of Taiwan Studies (EATS). The deadline is 15 September 2021.
  2. The Robert Schuman Centre for Advanced Studies offers the opportunity for established post-doctoral scholars and senior practitioners, who work in one of the core research areas of the Centre, to spend a period between two or eleven months as visiting fellows. The deadline to apply is 30 November 2021.
  3. The EUI (the Departments and the Robert Schuman Centre for Advanced Studies) organises a pre-selection of candidates interested in applying for Marie Sklodowska-Curie Postdoctoral Fellowships with the EUI as a host institution. The deadline is 1 September 2021.
  4. The British Association of Comparative Law (BACL) annual webinar will be held on 31 August 2021. The conference will be dedicated to “The regulation of hate speech online and its enforcement in a comparative perspective”.
  5. The Fondation Maison des Sciences de l’Homme (FMSH) provides scientific, material and financial support for the initiation of innovative projects concerning the following themes: “Ecological transition and social justice: Inventing new operating models” and “Populism and democracy”. The call for projects supports research projects in the development phase. The deadline for submission is 20 August 2021.
  6. The GNHRE calls for contributions on the ratification and implementation of the Escazú Agreement. Particularly, the GNHRE invite regional perspectives from Latin America and the Caribbean on human rights and the environment and the effects of the Escazú Agreement on the existing national legal framework

Elsewhere Online

  1. D.R. Cameron, EU challenges Orbán, approves new sanctions on Belarus, discusses what to do about Russia, Yale MacMillan Centre
  2. M. Everson, C. Joerges, Taking the Law Seriously? Observations on the PSPP Judgement and the Quest for Infringement Proceedings, Verfassungsblog
  3. S.D. Bechtel, The new EU Climate Law. Symbolic Law or Governance Framework?, Verfassungsblog
  4. F. Ferreira, O. Sterck, D.G. Mahler, B. Decerf, Taking poverty seriously in assessing the global welfare burden of the pandemic, LSEBlog
  5. Z. Truchlewski, W. Schelkle, J. Ganderson, Bypassing democracy or buying time for democracies? The EU and COVID, LSEBlog
  6. M.A. Tigre, Principle 10: what can we learn from its regional implementation through the Escazú agreement), Pathway to the 2022 Declaration
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Published on July 12, 2021
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The BBI at the Kenyan Court of Appeal | Part I: The Role of the Court in Referendums

Richard Albert, Professor of World Constitutions and Director of Constitutional Studies, The University of Texas at Austin

The Court of Appeal of Kenya recently concluded four days of oral argument on the constitutionality of the Building Bridges Initiative Constitutional Amendment Bill (BBI), a proposed mega-constitutional amendment bill that would quite substantially reform the Constitution of Kenya.

This post is the first in a short series of reflections on the BBI as we approach the date of the Court’s judgment, expected on August 20.

I begin with a question that is central to constitutional amendment in Kenya and to the future of the BBI, but that has not received nearly as much attention as the constitutionality of the BBI itself:

Does Chapter 16 of the Constitution of Kenya require putting the BBI to voters in a national referendum as (1) an omnibus Constitutional Amendment Bill or (2) as a series of separate and individual amendment proposals?

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Published on July 10, 2021
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Using Digital Constitutionalism to Curb Digital Populism

Emilio Peluso Neder Meyer, Federal University of Minas Gerais and National Council for Scientific and Technological Development, Brazil, and Fabrício Bertini Pasquot Polido, Federal University of Minas Gerais, Brazil

On January 6, 2021, the world watched on live stream the result of years and years of political extremism being dumped into American society. Radicalized supporters of Donald Trump, most of them QAnon members, stormed the Capitol under revolutionary chants, “Make America Great Again” caps and confederate flags. Some of them specifically targeted the Congressmen who were in the process of certifying the 2020 election results. The actions resulted in the death of four people.

This episode was just one of the many expressions of how dangerous digital populism can be. Digital populism is here referred to as the use of internet platforms to attack democratic constitutional institutions. Due to the radicalization of online political discourse, especially under the guise of a supposedly limitless freedom of expression, ungoverned digital platforms fostered an already aggravated polarization, which has a lot to do with the infrastructure of these business models.

In the case of former president Donald Trump, who had his account suspended by Facebook, the company’s Oversight Board recommended that it should not only clarify the requirements of the sanctions it applied, but also that it restrict his suspension and provide more transparency. The Oversight Board also indicated that publications could be targeted if they can propel violence and especially in the case of accounts that belong to heads of state, as well as other users with a broad range of followers. The platform limited Trump’s account suspension for up to two years, but was not convincing in offering full transparency.

It is necessary to develop ways to properly moderate content online, especially in the case of public figures and political leaders. However, one must also uncover the roots of the core issues related to the existing situation of content governance on the internet. The analysis of the way in which platforms profit via digital populism  represents a crucial step towards better content oversight, especially if governed by what we will call digital constitutionalism.

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Published on July 10, 2021
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The Beginning of the End for Vagrancy Laws?

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

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

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

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

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

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

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

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

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

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

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

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

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

Nakul Nayak, Assistant Professor at Jindal Global Law School, India.

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

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

Developments in Constitutional Courts

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

In the News

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

New Scholarship

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

Calls for Papers and Announcements

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

Elsewhere Online

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

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

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

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

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Published on June 29, 2021
Author:          Filed under: Developments