Blog of the International Journal of Constitutional Law

I·CON Volume 16, Issue 2: Editorial

J.H.H. Weiler, University Professor, European Union Jean Monnet Chair, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional Law; Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, New York University Law School; Co-Editor-in-Chief, International Journal of Constitutional  Law

This issue of I.CON is special in at least three ways.

First, it coincides with the 5th Annual ICON-S Meeting, which is to take place in Hong Kong on June 25-27. I.CON and ICON-S are distinct entities, but share a common parentage and overlapping teloi. By all measures ICON-S, while still young but no longer an infant, has been a success story. We have invited the outgoing Presidents, Gráinne de Búrca and Ran Hirschl, to contribute here a brief State of the Society ahead of the Hong Kong Meeting. We take this occasion to thank them and all others who have contributed to the achievements of ICON-S and to welcome the incoming Presidents, Rosalind Dixon and Lorenzo Casini. We wish them a successful term of office.

This issue has Asia as its principal focus. In the past we have from time to time commissioned symposia on the “changing landscape” of constitutionalism in different countries or regions. More recently, as with the second issue of 2017 which focused on the Latin American world, we have moved to lending almost an entire issue of I.CON to such foci. It is a felicitous coincidence that the focus on Asia coincides with the ICON-S meeting in Hong Kong.

Finally, in this issue we introduce a new innovation to I.CON, the Annual Foreword.

“Since 1951 the editors of the Harvard Law Review have selected a prominent scholar of constitutional law to write a ‘Foreword’ to the Review‘s annual survey of the work of the Supreme Court. Within the community of scholars of constitutional law the ‘Forewords’ are widely taken to be good indications of the state of the field. The Foreword project defines a vision of the field of constitutional scholarship….”  Thus begins the article by Mark Tushnet (a member of our I.CON Editorial Board) and Timothy Lynch, who analyze the celebrated Harvard Law Review Forewords.[1] Although considered a foreword to the annual survey of the work of the Supreme Court, most HLR Forewords have had but a tenuous connection to the Supreme Court work in that given year and instead provide an occasion, as Tushnet and Lynch state, for a significant reflection on the field of constitutional scholarship. Indeed, there is hardly a better method of keeping in touch with the field than regularly reading the HLR Forewords. And yet we, the young and cheeky upstart I.CON, feel constrained to introduce one little caveat to this ongoing remarkable scholarly project. When Tushnet and Lynch speak of the field of constitutional scholarship they really mean American constitutional scholarship. And by this we do not refer primarily to the overwhelming majority of the authors of the HLR Forewords, but more importantly to the constitutional universe that this scholarship addresses. It is, we might add, tongue-in-cheek, a manifestation of American parochialism, whereby “The Championship Game” of America’s favorite pastime, baseball, involving teams from two North American countries, Canada and the United States, is called “The World Series.” For some, the northern landmass between the Atlantic and the Pacific is “The World.”

Starting with this issue of I.CON we will be publishing our annual Foreword, which has a very similar objective to that of our infinitely more senior and distinguished American sister journal, but with one tiny difference: namely, the conception of what constitutes the universe of constitutional scholarship. In one of the next issues we will publish an I.CON Afterword, which will include several reactions to the Foreword’s arguments. One Foreword and one Afterword will be published each year. Our hope is that with the passage of years the I.CON Forewords will be “taken to be good indications of the state of the field” thus differently defined. Wish us success!

ICON-S – State of the Society

The idea to establish the International Society of Public Law (ICON-S) was conceived during a meeting of the I.CON Editorial Board in 2012, as a response to the ever-increasing significance of public law worldwide and the tremendous intellectual renaissance accompanying this move. As the Society’s manifesto indicates, its mission has been to create a vibrant, open-minded, inclusive and appealing platform for engagement among scholars, jurists and policymakers dedicated to the advancement of public law in all its varieties. We envisioned a global forum that, alongside a successful journal (I.CON) and a vibrant blog (ICONnect), would transcend traditional distinctions within public law (e.g. constitutional law, international law, administrative law, immigration law, environmental law) to foster transnational dialogue among public law scholars as well as between legal academics and those working in closely related branches of research within political science, economics, law & society and public administration.

The response has been overwhelming, and the Society’s success has exceeded our wildest hopes and expectations. In its inaugural annual meeting in Florence (European University Institute, 2014), there were approximately 500 delegates. Since then, the Society has held annual meetings in New York (New York University, 2015), Berlin (Humboldt University and WZB, 2016), and Copenhagen (University of Copenhagen and iCourts, 2017), with the number of participants gradually increasing and now nearing 1000.  The Society’s fifth annual meeting will shortly take place in Hong Kong (Hong Kong University, 2018) – the first time for the Society’s annual meeting to be held outside of Europe and North America. During the term of our co-presidency (2015-2018), we have focused our energies on building healthy, cosmopolitan, gender-balanced foundations for the Society, on spreading the ICON-S message to various communities and networks, on encouraging and establishing national and regional chapters (e.g. Israel, Mexico, Ireland and the UK, Germany, Singapore, Central and Eastern Europe), and on introducing governance procedures and scholarly prizes. Most of all, we have concentrated our efforts on carefully curating attractive annual meetings that would bring together some of the world’s most significant jurists and intellectuals alongside many up-and-coming public law scholars and policy-makers, through a combination of keynote addresses, plenary panels, and concurrent panels over three days of close and lively engagement among participants.

As we look back at our term, we are delighted to say that, at least from our current vantage point, the intellectual vision at the heart of the ICON-S idea has materialized into an exciting and flourishing young enterprise. The dynamic, diverse, forward-thinking and multi-generational character of the Society that is emerging is one that makes us proud to be part of the adventure.  We are confident that the foundations for rigorous, critical and globally-informed analysis of public law across time and place have been laid. To be sure, much work remains to be done as the Society, as any newly-born entity of its scope and nature, continues to evolve from infancy to adulthood. We trust that ICON-S will continue to strive for ever greater inclusiveness across all dimensions, for further enhancing its scholarly activities and reach, and for improving its financial stability and its ability to support interdisciplinary public law scholarship in the global south. In the meantime, we are grateful to the committed and hardworking officers of the Society who do so much behind the scenes and on a daily basis to make it run smoothly.  We salute the vision and the crucial foundational work of the inaugural co-Presidents, Sabino Cassese and Joseph Weiler, who gave birth to the Society and nurtured it through its infant years.  Finally and most importantly, we are deeply grateful to the Society’s growing membership for its support, energy, creativity and many different contributions to what we hope has become one of the more exciting platforms to engage with novel thinking about public law in theory and in practice today.

GdeB and RH

In this issue  

This issue opens with the journal’s first Foreword, authored by Doreen Lustig and Joseph Weiler, who survey three waves of judicial review in the contemporary world. The remainder of this issue – including all articles, symposium, critical reviews of governance, reviews of constitutional developments and book reviews – focuses specifically on Asia.

Focus on Asia

Our focus on Asia begins with a scene-setting essay by Johannes Chan, Professor of Law at the University of Hong Kong, who discusses major constitutional issues in Hong Kong.

In our Articles section, Tarunabh Khaitan uses the Indian constitution-making process as a case study and suggests that constitutional directives may be a useful tool in deeply divided societies to accommodate the needs of ideological dissenters during constitutional negotiations. Melissa Crouch then provides a socio-legal examination of Myanmar’s Constitutional Tribunal. She identifies the internal factors that explain the operation of that court and reflects on its role as a forum for dialogue between military dictators and elected politicians. Finally, Michael Ramsden explores the status of socio-economic rights in Hong Kong through the possible implementation of the International Covenant on Social, Economic and Cultural Rights in Hong Kong’s constitutional law and administrative law.

The next section features a Symposium on “Constitutional Rights in South Asia.” The symposium includes articles that engage with different jurisdictions: India, Pakistan and Nepal. It opens with an introduction by Jamal Greene and Madhav Khosla. Raeesa Vakil then offers a critique of the Indian Supreme Court’s jurisprudence, which employs the administrative law principles of natural justice in judicial review cases involving constitutional rights. Moeen Cheema explores how Pakistan’s Supreme Court has expanded its institutional role and emphasizes its judicial review power in administrative law cases. Mara Malagodi argues that Nepal’s Supreme Court has developed a crucial role in advancing the rights of Nepali women. Finally, Deepa Das Acevedo offers an overview of the Indian Supreme Court’s jurisprudence regarding the issue of women’s entry to the Hindu temple at Sabarimala.

The Critical Review of Jurisprudence section offers two contributions. First, Jaclyn Neo uses religious freedom cases from Singapore and Malaysia to critically discuss how the definition of religion influences the scope of the constitutional protection of religious practices. Second, Yoomin Won examines how the Korean Constitutional Court used international human rights instruments in its decisions between 1988 and 2015.

We also include a special section entitled “The I·CONnect-Clough Center 2017 Global Review of Constitutional Law.” This section contains three reports that summarize the most relevant constitutional developments that have taken place in Malaysia, Pakistan and Thailand during the year 2017.

This issue closes with a special Book Review section focused exclusively on Asia.

JHHW and GdeB

[1] Mark Tushnet & Timothy Lynch, The Project of the Harvard Forewords: A Social and Intellectual Inquiry 11 Const. Comment. 463, 463 (1994–1995)


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