What’s New in Comparative Public Law

—Rohan Alva, Jindal Global Law School

In this weekly feature, I-CONnect publishes a curated reading list of developments in comparative 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 comparative public law blogosphere.

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

Developments in Constitutional Courts

1. In a decision which upholds maternity rights, the Japanese Supreme Court has remanded, for a new trial, a claim of a physiotherapist who was treated unfavourably on account of her pregnancy. Originally, upon request, the claimant’s employer’s shifter her to a less demanding position on account of being pregnant, but did not subsequently reassign her to her previous post once she had given birth; a failure on the part of the employer which the Supreme Court deemed ‘illegal’. The Japanese government has come out in open support of this decision.
2. Justice Charles Hungwe of the High Court in Zimbabwe ruled that in the absence of a statute enumerating the circumstances in which the death penalty is to be handed down, a court cannot order the execution of a convicted individual. As per Section 48(2) of the Constitution, the presence of ‘aggravated circumstances’ in a murder can invite the death sentence but since no law further defines this provision, a court cannot for itself decide the conditions which merit the death penalty.
3. The Electoral Court in Bolivia declared Evo Morales the victor of the presidential elections. The president, who will now commence his third term, received nearly sixty one per cent of the polled votes, ahead of the opposing candidate who polled under twenty five percent of the votes.
4. A federal court in Puerto Rico has affirmed the legal restrictions on same-sex marriages. This decision, however, stands in a minority when compared to the over thirty jurisdictions which allow for same-sex marriages.
5. A court in Oklahoma, U.S.A, refused to interfere with a law which mandates for doctors carrying out abortions to seek affiliations with hospitals within a predetermined radius.

New Scholarship

1. Adam S. Chilton & Mila Versteeg, Do Constitutional Rights Make a Difference? (University of Virginia School of Law, Public Law and Legal Theory Research Paper Series 2014-43) (arguing that the presence of enumerated rights in constitutions do not always translate into the ability to properly exercise them, and positing that ‘political rights’ which focus broadly on association based rights are those which are satisfactorily enforceable)
2. Marcin Matczak, The Semantics of Openness: Why References to Foreign Judicial Decisions do not Infringe the Sovereignty of National Legal Systems (Faculty of Law and Public Administration, Warsaw University) (adopting a language based justification for the use of comparative material in legal reasoning, and theorising that the interpretation of a law should be within a framework of appreciating ‘external reality’ which allows for a departure from dependence on an originalist understanding of law)
3. Michael Stolleis & Thomas Dunlap, A History of Public Law in Germany 1914-1945 (Oxford University Press, 2014) (traces the turbulent development of Germany’s public law and the role of intellectuals in the development of the architecture of public law)
4. Geetanjoy Sahu, Environmental Jurisprudence and the Supreme Court: Litigation, Interpretation, Implementation (Orient BlackSwan, 2014) (critically evaluating the position of the Indian Supreme Court between from 1980 to 2010 on the subject of environmental law, and proposing that the decisions reveal a variable, rather than a standardised and uniform approach to environmental protection )
5. Ronan McCrea, Religion and the Public Order of the European Union (Oxford University Press, 2014) (engaging in an examination of the impact that religion has had on the development of public law in the European Union, and the method by which the European Union seeks to promote pluralism whilst also seeking to control the hold of religion over politics)

In the News

1. A report of a United Nations committee, headed by Justice Michael Kirby, which inquired into acts of human rights violations in North Korea was challenged by the nation in the U.N. with the North Korean representative questioning the manner in which the committee had interacted with witnesses, and charging the report with falsifying facts.
2. In a bid to introduce transparency in the functioning of the nearly fifteen thousand lower courts, the Indian government announced that it will ‘digitize’ the records of the courts to ensure speedy online availability of decisions, and details about pending cases.
3. The United Nations has recommended that Iraq immediately halt the implementation of the death penalty. In the last year itself, one hundred and seventy seven executions took place, which the U.N. considers to have been carried out without basic rights being guaranteed to the convicts who were executed
4. The Tanzanian Attorney General declared that the nation will hold a referendum on the new constitution in April, 2015. The decision on the referendum has not been welcomed by the political opposition which intends on taking recourse to the judicial system in order to challenge the proposed constitution.
5. Northern Ireland is set to introduce legislation which will impose a complete prohibition on prostitution. Activists, however, have questioned the logic of the legislation and argue that such laws will be counter-productive and leave ‘sex workers’ in a vulnerable state.

Elsewhere on the Web

1. Pierre De Vos, When some rights are more equal than others, Constitutionally Speaking
2. Ravi Amarnath, Canadian constitutional challenge to prohibition on assisted-dying, Oxford Human Rights Hub
3. Mark Elliot, Beyond Sark: The implications of the Barclay case, Public law for everyone
4. Jacob Gershman, Supreme Court to consider privacy rights of hotels, WSJ Law Blog
5. Apoorva Mandhani, Kailash Satyarthi’s legal struggles: PILs facilitating the cause, Live Law

Call for Papers/Conferences

1. The Association of American Law Schools invites international faculty members to attend its annual meeting in Washington, DC, scheduled for January 2-5, 2015. Registration information is available here.
2. Entries are invited by the Latin American Journal of International Trade Law for its forthcoming volume. Entries may be in either English or Spanish. All submissions must be made by the 19^th of December, 2014.
3. Papers are called for by the Oil, Gas, and Energy Law Journal and Transnational Dispute Management for a ‘Joint Special Issue on Renewable Energy Disputes.’ All papers are to be sent in by the 15^th of January, 2015.
4. Submissions are invited for the ‘Annual International Conference on Interdisciplinary Legal Studies’ which will be held at St. Anne’s College, Oxford from the 2^nd to the 4^th of March, 2015. All abstracts are due by the 2^nd of February, 2015.
5. A call for papers has been issued for the ‘International Conference on Law, Patent, and Technology’ which will be held in Bangkok, Thailand from the 21^st to the 23^rd of January, 2015. Papers are to be submitted by the 15^th of November, 2014.
6. The ANU Migration Program at Australian National University is hosting a conference on ‘Challenges to sovereignty- the impact of migration law and policy’ on the 7^th and 8^th of November, 2014. Professors Satvinder Juss and Zlatko Skrbis will deliver the keynote addresses.