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 Peru annulled the presidential pardon granted to former President Alberto Fujimori in December 2017.
2. The Supreme Court of Canada ruled that the decision by the Parliament of Quebec to fire three security guards is not protected by the principle of parliamentary immunity. As a consequence, the fired former employees can file a grievance against the legislature.
3. The Supreme Court of India dismissed a claim seeking to declare full statehood for Delhi.
4. The UK Supreme Court held that a bakery’s owners’ refusal –grounded on religious reasons– to bake a cake supporting same-sex marriage, did not constitute discrimination.
5. The Supreme Court of India directed the government to respond a public interest litigation initiated against Johnson & Johnson for the sale of alleged defective hip implants.
6. The Chief Justice of the Supreme Court of Pakistan, Saqib Nisar, asked the Capital Development Authority (CDA) to investigate the Prime Minister’s residence expansion in the wake of allegations of illegal constructions in the Bani Gala area.
7. The Constitutional Court of Malta upheld a lower court’s ruling that removed Deputy Police Commissioner Silvio Valletta as investigator of the murder of the journalist Daphne Caruana Galizia, due to serious doubts upon his impartiality.
8. The Court of Cassation of France requested an advisory opinion to the European Court of Human Rights on the scope of parental rights of a family whose children were born with the assistance of gestational surrogacy.
9. The Supreme Court of Pakistan heard an appeal filed by Asia Bibi, the first Christian person sentenced to death under the recently passed law on blasphemy, and announced that it will make a decision in the forthcoming days or weeks.
10. The Constitutional Court of Moldova declared that a ban that prevented people with intellectual disabilities from voting is unconstitutional.
11. The Supreme Court of Canada concluded that the Federal Government does not have an obligation to consult indigenous peoples before introducing to Parliament a bill affecting these communities. Read the decision here.
12. The Supreme Court of Chile upheld a decision issued by an environmental agency that ordered the closure of the water pumping wells used by Canada’s Kinross Gold Corp.
13. The Supreme Court of Norway upheld the rights of a doctor who refused to practice an abortion procedure based on moral and conscience-related reasons.
14. The Constitutional Court of Colombia maintained that municipal consultations cannot impede the implementation of mining or oil projects in the municipality’s territory.

In the News

1. The Parliament of Finland is considering a constitutional amendment aimed at establishing an exception, grounded on national security reasons, to the right to privacy.
2. Judge Brett Kavanaugh was sworn in as new Associate Justice of the US Supreme Court after a narrow confirmation vote by the US Senate.
3. The Tokyo Metropolitan Government passed a law banning discrimination based on gender identity or sexual orientation.
4. The Supreme Court of Hawaii is set to hear a challenge against an amendment to the state Constitution which seeks to increase taxes on investment properties.
5. Diana Johnson, Labour MP, is planning to introduce a bill in the House of Commons seeking to decriminalize abortion in Northern Ireland.
6. The Kenyan Parliament’s Budget and Appropriations Committee will review the financial implications of a constitutional amendment proposal which aims to reestablish, among others, the post of Prime Minister.
7. The Liberal Democratic Party of Japan (LDP) is planning to introduce to the Diet some proposals to amend the Constitution, while the government of North Korea decried this move.
8. The President of the Supreme Court of Ireland, Frank Clarke, called for more ‘direct dialogue’ between members of apex national courts across the European Union in order to facilitate the circulation of case-law-related information and to increase the ‘horizontal influence’ of domestic supreme courts.
9. The implementation of the Indian Supreme Court’s decision that gave women access to Kerala’s Sabarimala Temple has been met with resistance coming from members from a conservative Hindu group. Meanwhile, several political parties have called for dialogue before implementing the ruling.
10. The referendum that purported to amend the Romanian Constitution to define ‘family’ as the union between a man and a woman failed because it did not reach the minimum turnout threshold.
11. Right-wing candidate Jair Bolsonaro won the first round of the Brazilian presidential election. A runoff between Bolsonaro and the second most-voted candidate (Fernando Haddad) will take place on October 28, 2018.
12. In Philippines, the House of Representatives’ Committee on constitutional amendments approved a draft constitution that seeks to create a federal state.
13. The Parliament of Iran passed a bill to combat terrorist financing amidst concerns about the stability of the nuclear deal still in force with several European and Asian nations.
14. The President of Bangladesh, Abdul Hamid, signed the controversial Digital Security Act which has been criticized for its potential restriction of rights such as freedom of speech and press.
15. The Government of Malaysia plans to introduce a proposal to amend the Constitution to increase judges’ retirement age from 66 to 70.
16. The Government of Macedonia asked Parliament to vote on the constitutional amendment bill that seeks to change the name of the country to ‘Republic of North Macedonia’, after the referendum held on September 30 failed to get the minimum turnout and in order to be admitted as a NATO member.
17. Mohamed Lamine Bangoura was appointed as new president of the Constitutional Court of Guinea.
18. In the Netherlands, the Hague Court of Appeal held that the government must do more to reduce greenhouse emissions. Full English text of the judgement can be found here.
19. Armenia has submitted a new Electoral Code proposal to the Venice Commission to know its views on the new Code.
20. The Government of South Sudan is opposed to the creation of a war crimes court entitled to prosecute and punish war crimes committed during the five-year-long civil war.
21. In Cameroon, the opposition presidential candidate, Maurice Kamto, declared himself winner of the recent presidential election.
22. Andrzej Duda, President of Poland, appointed 27 new judges despite a judicial ruling that suspended any judicial nomination pending an opinion of the European Court of Justice.
23. The former vice president of Guatemala, Roxana Baldetti, was sentenced to prison for committing corruption-related crimes.
24. The Parliament of Tunisia passed an antidiscrimination law that prohibits and punishes racial discrimination.
25. The leader of Peru’s political opposition, Keiko Fujimori, was detained over corruption allegations.
26. The Chairman of the Constitutional Court of Russia, Valery Zorkin, argued for “drastic reforms” to the Russian Constitution. Namely, the Chairman advocated for more checks on power as well as for the protection of traditional Russian values against globalization.
27. The Washington state Supreme Court held that the state’s death penalty laws are unconstitutional.
28. The Government of Malaysia plans to abolish the death penalty and declared that it will halt all the pending executions.
29. The Supreme Court of Philippines Justice Antonio Carpio warned that the Philippines’ unilateral withdrawal from the ICC jurisdiction could weaken his country’s position with respect to China.
30. In the wake of the recent ICJ ruling, the President of Bolivia, Evo Morales, will send a letter to his Chilean counterpart to explore the possibility of establishing a binational dialogue to negotiate a Bolivian access to the Pacific Ocean.
31. In Sri Lanka, the Parliament approved the nomination of non-members of Parliament to the Constitutional Council.

New Scholarship

1. Kriszta Kovács & Kim Lane Scheppele, The fragility of an independent judiciary: Lessons from Hungary and Poland–and the European Union, Communist and Post-Communist Studies (2018) (tracing what has happened to the judiciaries in Hungary and Poland, showing how courts have been brought under the control of political forces, and examining the role and attempts of the European Union to stop this crisis)
2. Julian Rivers, The reception of Robert Alexy’s work in Anglo-American jurisprudence, Journal Jurisprudence. An International Journal of Legal and Political Thought (2018) (tracing the history and extent of Robert Alexy’s work’s reception on Anglo-American jurisprudence)
3. Salvatore Bonfiglio, Intercultural Constitutionalism. From Human Rights Colonialism to a New Constitutional Theory of Fundamental Rights (2018) (arguing that the effective protection of fundamental rights in a contemporary, multicultural society requires an ethics of reciprocity and a pursuit of dialogue between different cultures of human rights, and advancing the notion of ‘intercultural constitutionalism’ as a concept able to meet this requirement)
4. Anne Peters, Between military deployment and democracy: use of force under the German constitution, Journal on the Use of Force and International Law (2018) (analyzing how the German Constitution has tried to solve the tension between the need to effectively integrate military forces into multinational operations, democratic accountability, and judicial oversight)
5. Hélène Tyrrell, Human Rights in the UK and the Influence of Foreign Jurisprudence (2018) (providing a qualitative and quantitative examination of the use and non use by the UK Supreme Court of judicial decisions delivered by foreign national courts on human rights issues, and contending that the role of foreign precedents goes beyond what the expression ‘persuasive authority’ may imply)
6. Mattias Kumm, Global constitutionalism and the rule of law, in Anthony F. Lang & Antje Wiener (eds.), Handbook on Global Constitutionalism (2018) (laying out the meaning of the idea of the Rule of Law in the constitutionalist tradition, and examining the challenges to its global consolidation)
7. Nick W. Barber, The Principles of Constitutionalism (2018) (exploring how the principles of constitutionalism – sovereignty; the separation of powers; the rule of law; subsidiarity; democracy; and civil society– structure and influence successful states)
8. Jan Petrov, Unpacking the partnership: typology of constitutional courts’ roles in implementation of the European Court of Human Rights’ case law, European Constitutional Law Review (2018) (offering a typology of the roles played by constitutional courts in mechanisms of implementation of the European Court of Human Rights’ case law, and examining the conditions under which constitutional courts have the capacity to perform the roles listed in the typology and secure compliance with the European Court’s judgments)
9. Santiago Virgüez, Congresspeople in the Courtroom: Analysis of the Use of Constitutional Complaints by Members of Congress in Colombia 1992-2015, Colombia Internacional, (2018) (explaining the reasons why congresspeople belonging to the majoritarian coalition challenge, before the Colombian Constitutional Court, the constitutionality of statutes enacted during their tenure)
10. Giacomo Delledonne & Giuseppe Martinico (eds.), The Canadian Contribution to a Comparative Law of Secession. Legacies of the Quebec Secession Reference (2019 forthcoming) (reflecting on the landmark 1998 opinion of the Canadian Supreme Court concerning the secession of Quebec, and discussing its global influence)

Special Announcements

1. The University of Oslo is pleased to announce the launch of a new book by Anine Kierulf on “Judicial Review in Norway – A Bicentennial Debate” on November 16, 2018. The program will feature remarks from Dag Michalsen, Dean of the Faculty of Law, and Tore Schei, former Supreme Court Justice.
2. The Democratic Decay Resource (DEM-DEC) released the third monthly update of its bibliography on democratic decay (October 2018), containing new research worldwide from September 2018; key items from earlier in 2018 and late 2017; a significant list of items suggested by DEM-DEC users; and forthcoming research. A post introducing the Update was published on Verfassungsblog on 7 October.

Calls for Papers and Announcements

1. iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen, invites applications for five fully-funded three-year PhD scholarships. The deadline for submissions is December 14, 2018.
2. The Department of Political Science of LUISS Guido Carli calls for applicants who are interested in a two-year post-doctoral fellowship in Public Law on a project dealing with constitutional amendments -“Procedures for constitutional amendments: features, outcomes and consequences”. Applications must be submitted on line by November 5, 2018.
3. Melbourne Law School welcomes applications for a PhD scholarship. Applicants should be qualified to work on any aspect of Indian equality or anti-discrimination law. Applications should be sent by November 2, 2018.
4. European University Institute (EUI) calls for proposals for its forthcoming workshop on ‘Democratic Backsliding and Public Administration’, to be held from January 31 to February 1, 2019. Interested scholars should submit their proposals by October 19, 2018.
5. The Central and Eastern European Regional Chapter of ICON-S welcomes submissions for its international Conference on ‘Traditional Concepts: New Perspectives, New Challenges’, which will take place on March 29, 2019 in Prague. Interested scholars should send their abstract proposals no later than November 15, 2018.
6. The International Association of Constitutional Law (IACL) Research Group on “Constitutional Responses to Terrorism” calls for papers for its upcoming Annual Workshop on “Counter-Terrorism at the Crossroad between International, Regional and Domestic Law”, to be held on June 13-14, 2019, at Bocconi University. Interested scholars are invited to submit an abstract along with their CV by December 15, 2018.
7. The National University of Singapore invites paper proposals for its 16th ASLI Conference about the ‘Rule of Law and the Role of Law in Asia’. This Conference will be held from 11 to 12 June 2019 at the Faculty of Law. Abstracts should be sent by December 3, 2018.
8. The Max Weber Programme at European University Institute (EUI) convenes a workshop on ‘Global Justice and Populism’, and invites submissions from interested scholars. Abstracts must be sent on or before January 31, 2019.
9. The City Law School at the City, University of London, convenes a workshop on ‘Justice, Injustice and Brexit’, which will take place on October 19, 2018. A programme for the event can be found here.
10. The Democratic Decay Resource (DEM-DEC) will be formally launched on October 22, 2018 with a panel discussion and reception at the University of Melbourne. The panel discussion –titled ‘Is Democracy Decaying Worldwide? And What Can We Do About It?’– will provide an overview of democratic decay across the globe, with experts providing detail on four selected states. The full programme and details are on DEM-DEC.
11. The British Institute of International and Comparative Law in association with Cambridge University Press convenes a workshop on academic publishing aimed at those starting out in an academic career. This event will take on November 14, 2018 at the British Institute of International and Comparative Law (London).

Elsewhere Online

1. Samuel Moyn, Resisting the Juristocracy, Boston Review
2. Alexandra Phelan & Raul Sanchez Urribarri, The Venezuelan crisis matters and there’s much we can do, ABC News
3. Pauline Weller, “For the Court, it could be…”: Electing Constitutional Judges in the US and Germany, Verfassungsblog
4. Jack Balkin, Constitutional Rot Reaches the Supreme Court, Balkinization
5. Eugénie Mérieau, The Sixtieth Anniversary of the French Constitution: Toward the Death of the Fifth Republic? Verfassungsblog
6. Yen-Tu Su, Taiwan is revolutionizing democracy, The Washington Post
7. Rahul Bhatia, The Indian Government’s Astonishing Hunger for Citizen Data, The New York Times
8. Agata Gostyńska-Jakubowska, New Approaches to Upholding Democratic Values in Poland, Carnegie Europe
9. Tomasz Tadeusz Koncewicz, “Existential Judicial Review” in Retrospect, “Subversive Jurisprudence” in Prospect. The Polish Constitutional Court Then, Now and … Tomorrow, Verfassungsblog
10. Başak Çali, The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey, EJIL: Talk!
11. Alan Whysall, Challenges to good government in Northern Ireland: charting a future course, The Constitution Unit
12. Meg Russell, Alan Renwick & Jess Sargeant, How and when might a second referendum on Brexit come about? The Constitution Unit
13. Tom Gerald Daly, Searching for Democracy 2.0 without Losing Democracy 1.0, Pursuit
14. Simson Caird, Taking Back Control: Brexit, Parliament and the Rule of Law, U.K. Const. L. Blog
15. Charlotte Burns, UK & Devolved Governments Need to Cooperate on Environment After Brexit, Centre on Constitutional Change
16. Marco Antonio Simonelli, Judicial Appointments in the Age of Trump – Are There Remedies for Polarization? IACL-AIDC Blog
17. Julian O’Donnell, Are Victoria’s Safe-Access Zones Safe from the Constitution? AUSPUB Law
18. Leighann Spencer, Should the ECtHR Consider Turkey’s Criminal Peace Judgeships a Viable Domestic Avenue? Verfassungsblog
19. Adam Feldman, Empirical SCOTUS: What to expect from Kavanaugh’s first term, SCOTUSblog
20. John Tasioulas, Are human rights anything more than legal conventions? Aeon