What’s New in Public Law

—Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest

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 India concluded oral arguments in a case concerning the constitutional validity of the criminalization of adultery.
2. The Constitutional Court of Mali rejected appeals from opposition parties alleging irregularities in the voting process for the election of the President and confirmed that second round voting will proceed according to schedule.
3. The Supreme Court of Pakistan set aside an order from a subordinate court to restrain the Election Commission of Pakistan (ECP) from issuing the victory notification of Pakistan Tehreek-i-Insaf (PTI) Chairman Imran Khan a certain constituency in Lahore and ordering the returning officer to hold a recount of all ballot papers.
4. The Supreme Court of Brazil held public hearings on the decriminalization of abortion within the first 12 weeks of pregnancy.
5. The Supreme Court of India considered the constitutional validity of the practice of female genital mutilation in the minority Dawoodi Bohra Muslim community.
6. The Federal Constitutional Court of Germany held that making pension benefits contingent upon the transfer of an agricultural holding constitutes a factual interference with the freedom of property under Art. 14 of the Basic Law.
7. The Spanish Supreme Court established that the views expressed by UN Human Rights Treaty Bodies in individual complaints are binding on the State.

In the News

1. Argentina’s Senate rejected a bill which would have legalised abortion in the first 14 weeks of pregnancy.
2. A data protection group filed a constitutional complaint at the Federal Constitutional Court in Karlsruhe against a law which allows authorities to read encrypted messages by secretly installing spyware on computers or mobile phones by exploiting security loopholes.
3. In the latest turn in the ongoing debate on land expropriation without compensation in South Africa as part of the ANC’s land reform drive, agricultural industry body AgriSA has expressed its intention to mount a legal challenge to this at the Constitutional Court.
4. Nelson Chamisa of the MDC Alliance, the main opposition party to the ZANU-PF, confirmed that it would seek annulment of the recently concluded Zimbabwean presidential election results in court.
5. A Seoul city court rejected a challenge to the adequacy of the compensation paid to twelve former ‘comfort women’, who allege that the amount paid to them was in violation of a 2011 order of the South Korean Constitutional Court.
6. The Office of the President of Poland declared that a recent Polish Supreme Court decision to suspend the operation of a law which would force early retirement of a number of its j judges was an attempt to circumvent the law.
7. The President of Poland stated that he would likely veto a law sought to be passed by the ruling Law and Justice Party (PiS) which would favour larger parties like PiS and the biggest opposition group Civic Platform (PO), while and disadvantaging smaller groups or individuals.
8. In Sri Lanka, the first legal draft for proposed new constitution has been submitted to Parliamentary steering committee for further discussions.
9. Cuba plans to hold around 135,000 public meetings to obtain feedback on the draft for its new constitution.
10. The Speaker of the House in Philippines proposed that the two Houses of Congress vote separately on the new federal constitution.

New Scholarship

1. Markus Kotzur (ed.), Peter Häberle on Constitutional Theory. Constitution as Culture and the Open Society of Constitutional Interpreters (Nomos/Hart Publishing, 2018) (presenting a collection of essays on how processes of constitutionalisation are themselves cultural processes; their outcome, the constitution, thus qualifies as an emanation of culture itself).
2. Jedediah Purdy and David Singh Grewal, The Original Theory of Constitutionalism, 127 (3) Yale Law Journal (2018) (reviewing Richard Tuck’s The Sleeping Sovereign: The Invention of Modern Democracy, and offering a modern theoretical account of constitutionalism drawing from classic social contractarian models).
3. Fiona Shen-Bayh, Strategies of Repression: Judicial and Extrajudicial Methods of Autocratic Survival, 70(3) World Politics (2018) (arguing that autocrats use a judicial strategy of repression when confronting challengers from within the ruling elite).
4. Diego Werneck Arguelhes and Leandro Molhano Ribeiro, ‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory 7(2) Global Constitutionalism (2018) (arguing that within the Brazilian Supreme Court, the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory).
5. Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (Hart Publishing, 2018) (presenting the first major empirical study of the use of foreign jurisprudence at the UK Supreme Court).
6. The Brandeis Institute for International Judges, Oslo Recommendations for Enhancing the Legitimacy of International Courts (2018) (formulating principles aimed at reinforcing the legitimacy of institutions of international justice).
7. Ulrich Wagrandl, Transnational militant democracy 7(2) Global Constitutionalism (2018) (examining two strains of militant democracy: the first, ‘transnational democracy gone militant’, epitomized by the European Union (EU)’s power to enforce liberal democratic standards in its Member States, the second ‘militant democracy gone transnational’, the manifestation of which permits treating people rallying in the EU to attack democracy abroad in the same manner in which we are permitted to treat opponents of ‘our own’ democracy).
8. Tanzil Chowdhury, Taming the UK’s war prerogative: the rationale for reform 38(3) Legal Studies (2018) (assessing the current state of the war prerogative, specifically focusing on deployment decisions, while also outlining the constitutional position over troop deployments, and scrutinizing recent reform efforts and problematizing the rationale underpinning those reforms).
9. Dominic J Nardi, Jr, Demand-Side Constitutionalism: How Indonesian NGOs Set the Constitutional Court’s Agenda and Inform the Justices Centre for Indonesian Law, Islam, and Society Policy Papers (2018) (arguing that NGOs have had a crucial and underappreciated impact in determining both which cases reach the justices, and the content of the Indonesian Constitutional Court’s final decisions).

Call for Papers and Announcements

1. The Democratic Decay Resource (DEM-DEC) released the first monthly update of its bibliography on democratic decay (August 2018), containing new research worldwide from July 2018; key items from January-June 2018; additions to the Bibliography suggested by DEM-DEC users; and forthcoming research.
2. The University of Notre Dame invites applications for the position of Dean of Notre Dame Law School. For further information, prospective candidates are encouraged to get in touch with Lisa Prigohzy-Milius at nd-lawdean@presidiosearch.com, or go to: http://law.nd.edu.
3. The University of Hong Kong seeks applicants for Tenure-Track Associate Professor/Assistant Professor or Senior Lecturer/Lecturer positions. Applicants should send a completed application form together with up-to-date C.V., details of relevant experience and course teaching interests, to the Department at dolsen@hku.hk. Application forms (341/1111) can be downloaded at http://www.hr.hku.hk/apptunit/form-ext.doc. Further particulars can be obtained at http://jobs.hku.hk.
4. Reconnect announced at least three post-doctoral positions in relation to their work on democratic backsliding in Europe.
5. The University of Geneva announced the position for an academic assistant in EU law.
6. The Externado University of Colombia announced a seminar on “Authoritarian and abusive constitutionalism in Latin America” on 25-26 October.
7. The Melbourne Institute of Comparative Constitutional Law issued a call for papers for its Young Scholars Forum at the Melbourne Law School to be held on 27-29 November 2018.
8. The Melbourne Law School invited applications for the MLS (ARC) Laureate Postdoctoral Fellowship in Comparative Constitutional Law.
9. The Laureate Visiting Fellowships in Constitutional Law invited applications from outstanding female doctoral and female early career researchers for the opportunity to participate in an intensive mentoring program relative to the Laureate Program with Professor Adrienne Stone, ARC Kathleen Fitzpatrick Australian Laureate Fellow.
10. The German Law Journal invited special issue proposals for Volumes 20 (2019) and 21(2020) due 31 October.
11. The Reagan-Fascell Democracy Fellows Program, invited applications from democracy activists, scholars, and journalists for five-month fellowships.

Elsewhere Online

1. Jess Sargeant, Alan Renwick and Meg Russell, Is a second referendum on Brexit possible? Seven questions that need to be answered, The Constitution Unit, 9 August.
2. Pin Lean Lau, #NotMarriedat11: Legal Failures to Protect Children from Child Marriage in Malaysia, Oxford Human Rights Hub Blog, 8 August.
3. Robert Grzeszczak, Ireneusz Pawel Karolewski, The Rule of Law Crisis in Poland: A New Chapter, Verfassungsblog, 8 August.
4. Stephanie Palmer, Abortion Law: Repeal of the Eighth Amendment in Ireland but a Pyrrhic Victory in Northern Ireland, IACL Blog, 8 August.
5. Alison Young, Will Brexit change the UK constitution?, Hansard Society, 7 August.
6. Akash Paun, Is the UK-Scotland Supreme Court case the start of a new phase of constitutional conflict?, The Constitution Unit, 7 August.
7. Erwin Chemerinsky, The 3 sleeper cases of the last Supreme Court term, ABA Journal, 6 August.
8. Marta Simoncini, The Uncertain Application of the EU Withdrawal Act 2018. From the Great Repeal to the Contingency Plan?, IACL Blog, 6 August.
9. Stefanie Kappler and Louis Monroy-Santander, Colombia’s troubled peace process and the lessons of Bosnia-Herzegovina, The Conversation, 6 August.
10. Alicja Sikora, The CJEU and the rule of law in Poland: Note on the Polish Supreme Court preliminary ruling request of 2 August 2018, EU Law Analysis, 4 August.
11. James Fishkin, Yes, Ordinary Citizens Can Decide Complex Issues, Wall Street Journal, 3 August.
12. Radosveta Vassileva, Bulgaria’s Constitutional Troubles with the Istanbul Convention, Verfassungsblog, 2 August.
13. Linda Greenhouse, Is Clarence Thomas the Supreme Court’s Future?, The New York Times, 2 August.
14. Adam Etinson, How high to dream?, Times Literary Supplement, 25 July (reviewing Samuel Moyn’s Not Enough: Human Rights in an Unequal World).