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I·CONnect

Blog of the International Journal of Constitutional Law

As Karlsruhe and Luxembourg Feud, are Jo’burg and Arusha Growing Closer?

Tom Gerald Daly, The University of Melbourne

2020, which has been a friend to no one, has certainly not spared international courts. Most obviously, the Federal Constitutional Court of Germany’s Weiss[1] judgment of 5 May, holding a judgment of the Court of Justice of the EU ultra vires due to poor reasoning, has shaken the primacy of EU law as the very foundation of the Union. The ultimate judicial showdown has launched (seemingly) a thousand blog posts, with commentators criticizing the German Court’s own reasoning, and issuing open letters insisting that national courts simply cannot override CJEU judgments. It has upturned a long-held view of broadly positive interaction in Europe achieved, not through formal design, but by courts engaging in ‘judicial diplomacy’ and strategy across the national/international divide to allow the overall system to function without excessive friction, despite key national courts’ longstanding refusal to acknowledge the absolute and unconditional supremacy of EU law.[2]

Other international courts have also had a tough 2020. As global attention has been consumed by the COVID-19 pandemic, the African Court on Human and Peoples’ Rights in Arusha, Tanzania, has suffered a stealthy backlash, with both Benin and Côte d’Ivoire withdrawing their declarations allowing individuals and NGOs to petition the African Court. This forms part of a wider pattern of backlash that has included Rwanda and Tanzania withdrawing their declarations in 2016 and 2019, non-compliance with key judgments, and questionable plans to merge the Court with the AU’s (as yet not established) Court of Justice to create an African Court of Justice and Human Rights, which have left the Court in a position of institutional insecurity.

However, a recent positive – and potentially quite significant – development in the relationship between national and international judiciaries in the African Union (AU) has gone largely unnoticed. On 11 June, for the first ever time the Constitutional Court of South Africa cited the African Court. In the Court’s New Nation Movement[3] ruling, holding the ban in Electoral Act 73 of 1998 on independent candidates unaffiliated to any political party standing in national and provincial elections is unconstitutional and lacking justification, Madlanga J directly cited the African Court’s first merits judgment of June 2013, Mtikila v. Tanzania,[4] which unanimously held the Tanzanian Constitution’s bar on independent candidacies incompatible with the African Charter on Human and Peoples’ Rights (‘Banjul Charter’). To say this is a positive development does not necessarily require agreement with the substance of the judgment itself (indeed, on Twitter, Tarunabh Khaitan has already voiced a negative view of the decision).

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Published on July 8, 2020
Author:          Filed under: Developments
 

Call for Papers — Constitutional Space for Cities


Constitutional Space for Cities

April 7th – 8th, 2021

Call for Papers

Cities are drivers of the world’s economy:  they are home for most of the world’s population and create a large percentage of its’ wealth.  Nevertheless, municipal governments struggle to invest in appropriate infrastructures and necessary services, leading to considerable gaps in affordable housing, public transit, and social services.  This conference, on “Constitutional Space for Cities” and its’ associated papers, will seek to understand and explain why … and propose paths forward for Cities in Canada.

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Published on July 7, 2020
Author:          Filed under: Developments
 

What’s New in Public Law


Mohamed Abdelaal, Assistant Professor, Alexandria University Faculty of Law


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

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

Developments in Constitutional Courts

  1. The Constitutional Court of Italy declared Criminal Code Provision on Child Abduction Unconstitutional.
  2. The Constitutional Court of South Africa denied the application of an opposition party challenging the Disaster Management Act.
  3. The US Supreme Court ruled that states cannot ban public funding for religious schools.
  4. The Constitutional Court of Costa Rica found that freedom of transit is not unlimited.
  5. The Constitutional Court of Kosovo annulled the 2019 Law on salaries.

In the News

  1. In Russia, proposed constitutional amendments were approved in a referendum.
  2. In Georgia, a bill on constitutional amendments to the electoral system was adopted.
  3. The Armenian President refused to sign further amendments to the constitution about the composition of the Constitutional Court.
  4. The US approved new sanctions after China passed a repressive security law.
  5. In Egypt, a new law has been ratified to govern legislative elections and the formation of the Senate.

New Scholarship

  1. Akhilesh Dubey, Legislating Fake News-Drawing Line Between Free Speech and Disinformation (2020) (discusses the challenges faced by fake news and disinformation disseminated through social media platforms in India)
  2. Christine A. Desan and Nadav Orian Peer, The Constitution and the Fed after the COVID-19 Crisis (2020) (reconstructing the traditional ways of thinking that distinguished money creation by the Fed from the congressional power of the purse)
  3. Gregory M. Collins, Commerce and Manners in Edmund Burke’s Political Economy (2020) (providing an analysis to the Commerce and Manners in Edmund Burke’s Political Economy that raises timely ethical questions about capitalism and its limits)
  4. Joanna Bell, The Anatomy of Administrative Law (2020) (seeking to further our understanding of the nature of administrative law doctrine and adjudication)
  5. Joshua Kastenberg, National Security And Judicial Ethics: The Exception To The Rule Of Keeping Judicial Conduct Judicial And The Politicization Of The Judiciary, 22 Elon Law Journal (2020) (incorporating original research from the personal correspondences of several judges and justices)
  6. Mehdi J. Hakimi, Elusive Justice: Reflections on the Tenth Anniversary of Afghanistan’s Law on Elimination of Violence Against Women, 18 Northwestern Journal of Human Rights (2020) (examining Afghanistan’s legal framework on combating gender-based violence against women, and the mounting challenges on the ground)
  7. Grainne De Burca, The Mutual Judicial Influence of National Courts and the European Court of Justice through the Preliminary Rulings mechanism: Evidence from the UK (2020) (examining 113 preliminary references made by the higher English courts over ten years to understand the extent to which the British courts have implemented rulings of the CJEU’s and the extent to which the interpretations proposed by the UK courts influenced the CJEU in return)

Calls for Papers and Announcements

  1. Starting next week: the online course on Judging in Times of Crisis: Conversations with High Court Judges around the World, featuring Supreme and Constitutional Court judges from Brazil, Canada, the Caribbean, Italy, Portugal, South Africa, and Taiwan.
  2. Chicago Journal of International Law (CJIL) invites comparative law articles for publication.
  3. The Law Review Anthology (TLRA) welcomes submissions for its new volume.
  4. Legal Corner (LC) Law Review calls for unpublished research papers, short notes, book reviews, case comments.
  5. The Shimla Law Review seeks submissions for its upcoming volume.
  6. The Comparative Constitutional Law and Administrative Law Quarterly invites submissions for its upcoming volume.

Elsewhere Online

  1. David R. Cameron, Civil War politics finally ends in Irish parliament: Fianna Fáil & Fine Gael form coalition, Yale MacMillan Center
  2. Isaac Ssemakadde, Ugandan electoral commission’s digital campaign order is unconstitutional, ConstitutionNet
  3. Liên H. Payne, Law Firms Need to Have Uncomfortable Conversations About Race, American Lawyer
  4. Thomas F. Cotter, Disgorgement as an Equitable Remedy, Comparative Patent Remedies
  5. Johannes Socher, Farewell to the European Constitutional Tradition The 2020 Russian Constitutional Amendments, Verfassungsblog
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Published on July 6, 2020
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The Constitutional Chamber’s Recent Decisions to Enable Legislative Elections in Autocratic Venezuela


Raul A. Sanchez Urribarri, Senior Lecturer in Legal Studies, La Trobe University (Melbourne). Email: r.sanchezu@latrobe.edu.au.


In recent weeks, the Constitutional Chamber of the Venezuelan Supreme Tribunal (Tribunal Supremo de Justicia, TSJ), issued key rulings in support of President Nicolás Maduro’s regime, in his quest to recover the control of the country’s parliament, overcome the ongoing political and economic crisis, and further cement his authoritarian rule.  The decisions allowed for designations of the National Electoral Authority (CNE), and the subsequent interventions (and virtual takeover) of two of the most important opposition political parties: Acción Democrática (‘Democratic Action) and Primero Justicia (‘Justice First’).

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Published on July 3, 2020
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Tomorrow Knows Better: A New Inflection Point in Brazil’s Democracy?

Juliano Zaiden Benvindo, University of Brasília and National Council for Scientific and Technological Development

Brazil is again in the spotlight, and, as has been a common narrative at least since President Jair Bolsonaro’s election in 2018, not for a good reason. News from everywhere has underlined that the country is not only under a health crisis due to the rapid spread of COVID-19, which has killed over 50,000 Brazilians (the world’s second in deaths, behind only the US), but, strikingly, also because of the serious threats to its democracy. A typical authoritarian vocabulary pops up on a daily basis in media and academic analyses of Brazilian politics. The New York Times published an alarming report saying that “President Bolsonaro and his allies are using the prospect of military intervention to protect his grip on power.” Yascha Mounk wrote a column for Folha de S. Paulo – Brazil’s leading newspaper -, arguing that “Brazil is already a democracy under military supervision”, and Steven Levitsky, though acknowledging that he is more concerned with the United States and its decline as a world leader, said that “Bolsonaro is more authoritarian than any other elected leader”.

The sequence of events more than support such a vocabulary. Just by reading the last week headlines, there we find: “It is time to put things in their right places, said Bolsonaro after Supreme Court’s decisions”, “Bolsonaro: I won’t be the first to break bad”, “The Armed Forces will not carry out absurd orders nor accept political judgments, says Bolsonaro”. Academic posts have also expressed this feeling. Emilio Meyer and Thomas Bustamante wrote “Authoritarianism without Emergency Powers: Brazil under Covid-19”, Antonio Maués wrote “Bolsonaro’s First Year: Trying to Erode Democracy, and João Victor Archegas and Letícia Kreuz were even more straightforward: ”The ‘Constitutional Military Intervention: Brazil on the Verge of Democratic Breakdown”. All the apprehension is more than justifiable in view of the sequence of events that have struck the country, and the past dictatorship from 1964-1985, though already quite distant after years of democratic life, is always a reminder of how things can turn out really badly.

However, those fascinating discussions are good examples of the difficult balance between, on the one hand, the importance of exposing and interpreting the fast and radical pace of events, and, on the other, the methodological challenge to patiently bide our time in order to more accurately understand and assess the reality. Constitutional lawyers and political scientists constantly deal with such a dilemma, especially when the situation changes so rapidly that it is like quicksand, swallowing some of our immediate, though well-founded, conclusions about a certain phenomenon.

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Published on July 1, 2020
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Constitutional “Vaccination”: China’s National Security Law-Making for Hong Kong


P. Y. Lo, LLB (Lond.), PhD (HKU), Barrister-at-law, Gilt Chambers, Hong Kong


A cartoon appeared in the US press several months ago, probably before COVID-19 was declared as a pandemic, with this caption: ‘That’s odd: My Facebook friends who were constitutional scholars just a month ago are now infectious disease experts …’.

This post introduces the current national security law-making by the Chinese Central Authorities for Hong Kong, a Special Administrative Region of China governed by systems different from those of China’s pursuant to a Basic Law that the Chinese Central Authorities enacted 30 years ago, in the language of pathology, epidemiology and immunology.

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Published on June 30, 2020
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Five Questions with Jill Goldenziel


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


In “Five Questions” here at I-CONnect, we invite a public law scholar to answer five questions about her research and writing.

This edition of “Five Questions” features a short video interview with Jill Goldenziel, Associate Professor, Marine Corps University-Command and Staff College.

Asked to identify her most meaningful publication among the ones she has authored, she selected Displaced: A Proposal for an International Agreement to Protect Refugees, Migrants, and States, published in the Berkeley Journal of International Law.

To nominate someone for a future edition of “Five Questions,” please email contact.iconnect@gmail.com. We welcome all nominations. We are especially eager to receive nominations of early-career scholars and women.

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Published on June 30, 2020
Author:          Filed under: Reviews
 

What’s New in Public Law


–Swapnil Tripathi, Attorney, India


Developments in Constitutional Courts

  1. The Burundi Constitutional Court ruled that President-elect Evariste Ndyaishimiye should be sworn-in as soon as possible.
  2. The Supreme Court of India allowed the Rath Yatra of Lord Jagannath (procession) subject to strict guidelines.
  3. The Ukraine Constitutional Court declared Article 375 of the Ukrainian Criminal Code as unconstitutional, which provided for the liability of judges for the “delivery of a knowingly unfair judgment.”
  4. The United States Supreme Court held that President Trump’s move to rescind the Deferred Action for Childhood Arrivals (Daca) Programme which granted protection to immigrants from deportation, is arbitrary and capricious under Federal Administrative Procedure Act.
  5. The United States Supreme Court held that an individual who fails in securing asylum, cannot challenge his removal in the Federal Court.

In the News

  1. Armenia passed a Constitutional Amendment which retrospectively imposes a term limit of 12 years on Judges of the Constitutional Court.
  2. Georgia Legislature passed a Bill that shall impose stricter penalties for targeting a victim based on race, color or any other type of bias.
  3. Luiz Fux appointed as the Chief Justice of the Brazil Supreme Court.
  4. Merab Turava appointed as the new Chair of the Constitutional Court of Georgia.
  5. Dr. Stephan Harbarth appointed as the President of the Federal Constitutional Court of Germany.
  6. Russia votes on the Constitutional Reform which limits a president’s rule to two six-year terms in total, rather than two consecutive terms.

New Scholarship

  1. Jens Peter Christensen, The Constitution, in Peter Munk Christiansen, Jørgen Elklit, Peter Nedergaard (eds.), Oxford Handbook of Danish Politics (2020) (examining the Constitutional Act of Denmark, its history, evolution and relevance)
  2. Hanretty Chris, A Court of Specialists: Judicial Behaviour on the UK Supreme Court (2020) (arguing that the UK Supreme Court is a court of specialists, and despite sitting in panels of five, seven or nine, the majority of its work is carried out by individual specialists on the Bench)
  3. Mathew Idiculla, Unpacking Local Self-Government: The Uncertain Power of Cities in the Indian Constitution, VRU WCL (2020) (examining the legal authority of city governments in India’s constitutional architecture and analyses the nature and extent of powers exercised by them)
  4. Toni Massaro et al., Constitutional Norms for Pandemic Policy, Arizona Legal Studies Discussion Paper No. 20-29 (suggesting four constitutional principles to shape pandemic policies and enable them to garner broad public acceptance)
  5. Constantina Tridimas and George Tridimas, Is the UK Supreme Court Rogue to Un-Rogue Parliament?, European Journal of Law and Economics  (2020) (applying the Collective Choice Theory, to review the Supreme Court’s decision in R (on the application of Miller) v. the Prime Minister

Calls for Papers and Announcements

  1. The International Forum on the Future of Constitutionalism invites all to register for the online course “Judging in Times of Crisis: Conversations with High Court Judges around the World,” featuring Supreme and Constitutional Court judges from Brazil, Canada, the Caribbean, Italy, Portugal, South Africa, and Taiwan.
  2. Campus Law Centre (Faculty of Law), University of Delhi (India) has issued a Call for Papers for its Journal of Campus Law Centre. The last for submission is 31 July 2020.
  3. The International Forum on the Future of Constitutionalism invites participants to register for the course “The Future of Liberal Democracy: Global Dialogues with Leading Scholars”. The six-week course will be held live on Zoom starting on July 22, 2020.
  4. The European State Aid Law Quarterly has issued a Call for Papers for its Issue 4. The last date for submissions is 14 August 2020.
  5. The National Law University, Jodhpur has issued a Call for Papers for its Comparative Constitutional Law and Administrative Law Quarterly (Volume 5.1). The last date of submissions is 15 July 2020.
  6. The Utrecht University School of Law has issued a Call for Papers for its Utrecht Law Review.
  7. The University of New Hampshire Law Review has issued a Call for Abstracts for its Annual Symposium titled ‘Rights and Responsibilities: Judicial & Legislative Responses to the COVID-19 Pandemic’. The Symposium is to be held on 23 October 2020. The last date of submissions is 1 September 2020.

Elsewhere Online

  1. Gallen Emma, Abortion is now legal in Northern Ireland – but why aren’t procedures actually being carried out?, Telegraph.
  2. Ghose Sanjay, The Judge who unseated a Prime Minister, The Leaflet.
  3. Izobo Mary, Abiodun Folasade, Enforcement of lockdown regulations and law enforcement brutality in Nigeria and South Africa, Afric Law.
  4. McCrudden Christopher, Democracy, protests and Covid-19: The Challenge of (and for) Human Rights, UK Constitutional Law Association.
  5. Sumner Cate and Lister Leisha, The Long wait in Indonesia for a Female Chief Justice in a Top Court, Lowy Institute.
  6. Tripathi Swapnil, Revisiting the Infamous Emergency & Its Impact on the Legal Community, Live Law.
  7. Wakene Dagnachew, The ‘forgotten tribe’: Persons with disabilities in Ethiopia and the State’s response to COVID-19, Afric Law.
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Published on June 29, 2020
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Language and the Constitution of Bangladesh–In Memory of Professor Anisuzzaman


Emraan Azad, Lecturer, Department of Law, Bangladesh University of Professionals (BUP)


(1) This Constitution may be cited as the Constitution of the People’s Republic of Bangladesh and shall come into force on the sixteenth day of December, 1972, in this Constitution referred to as the commencement of this Constitution.

(2) There shall be an authentic text of this Constitution in Bengali, and an authentic text of an authorised translation in English, both of which shall be certified as such by the Speaker of the Constituent Assembly.

(3) A text certified in accordance which clause (2) shall be conclusive evidence of the provisions of this Constitution:

Provided that in the event of conflict between the Bengali and the English text, the Bengali text shall prevail.

–Article 153, The Constitution of the People’s Republic of Bangladesh, 1972

In the making of the Bangladesh Constitution, the issue of language – particularly ‘Bangla as a language’ – had been practically very significant to be understood from two historical contexts. Firstly, the constitution makers felt the necessity to produce a Bangla text of the Constitution along with an English one to respect the (Bengali) nationalist spirit relating to the 1952 language movement.[1] Sacrifices made by the people for the mother tongue of Bangla was constitutionally then honoured. Secondly and quite contrary to the spirit of language movement, with the constitutional declaration of ‘Bangla’ – the majority Bangalee population’s mother tongue – as the ‘State language’, the constitution makers simply ignored showing respect to languages of other communities, mainly those of the indigenous ethnicities.[2] The idea of inclusive constitutionalism had then plausibly faced its first blow also.

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Published on June 28, 2020
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“The Parliament Is Dead, Long Live the Court”: Thirty Years after the Rise of the Taiwan Constitutional Court from the Ashes of Taiwan’s Very Long Parliament


–Ming-Sung Kuo, Associate Professor of Law, University of Warwick; and Hui-Wen Chen, Research Assistant, University of Warwick


Born Again Thirty Years Ago 

Seventy years is a milestone for any constitutional court in the world, including the Taiwan Constitutional Court (TCC), which celebrated its 70th birthday in 2018.  Yet, it is by putting Taiwan’s very long First Parliament to death thirty years ago that the TCC has emerged as one of the most progressive courts in new democracies.  On 21 June 1990 when the Taiwanese still had no right to vote on their President and the First Parliament of 1948 was dominated by octogenarians elected in China, the TCC rendered J.Y. Interpretation No. 261, declaring that the First Parliament must give way to new elections and those elected over forty-years ago must go by the end of 1991. 

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Published on June 27, 2020
Author:          Filed under: Developments