What’s New in Public Law

—Vicente F. Benítez R., JSD student at NYU 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 Canada ruled that the province of British Columbia does not have to grant access to a tobacco company to the information contained in the province’s health databases.
2. The Constitutional Court of Ecuador rejected an appeal filed by Chevron which sought to reverse a $9.5bn judgement for polluting the Amazon rainforest.
3. The Supreme Court of India decided to hear a case concerning a governmental proposal to monitor social media, and expressed concerns over the possibility of creating a surveillance state.
4. The Constitutional Court of Uganda is set to deliver a judgement on the constitutionality of a constitutional amendment that, inter alia, repealed age limits for candidates seeking to run for the presidency.
5. The Court of Cassation of Italy held that telling migrants to “go away” is racist.
6. The Spanish Constitutional Court suspended a motion passed by the Catalonian Parliament aimed at resuming the process towards independence.
7. The Supreme Court of India asked Parliament to enact proper laws in order to tackle the rise of mob lynching cases.
8. The European Court of Human Rights concluded that Russia breached the European Convention on Human Rights due to the degrading treatment given in prison to members of Pussy Riot, and due to its failure in prosecuting the murderers of journalist Anna Politkovskaya.
9. The German Constitutional Court upheld the imposition of public broadcasting fees on primary dwellings as well as on the commercial and non-private sector. However, the Court ruled that the said imposition on secondary dwellings is not compatible with the Basic Law.
10. The Supreme Court of India ruled that prohibiting women from entering into temples in Sabarimala is discriminatory.
11. The Supreme Court of California blocked a ballot proposal to divide the state of California into three new states.
12. The German Constitutional Court dismissed a challenge against the construction of a pipeline intended to pump gas from Russia to Germany.

In the News

1. India’s Supreme Court Justice Ranjan Gogoi declared that a “revolution, not [a] reform” is required to maintain the judiciary’s service in favor of the common people of India.
2. The Council of Europe’s Venice Commission concluded that the proposed reforms to the judiciary in Romania could undermine judicial independence.
3. Opposition parties in South Sudan decried Parliament’s move to extend President Salva Kiir’s tenure.
4. The leader of Philippines’ Senate Majority, Senator Juan Miguel Zubiri, asserted that the Senate should not rush to approve the amendment that aims to establish a federal regime, while the majority of the people disagree with such a constitutional change.
5. The Government of Cuba unveiled a constitution’s draft proposal to replace the 1976 Constitution. The draft creates the post of prime minister and recognizes private property, among other things.
6. Constitutional law experts joined opposition leader Raila Odinga’s call for amending the Kenyan Constitution.
7. Hungarian Foreign Minister, Péter Szijjártó, announced that Hungary is preparing to withdraw from the United Nations migration pact.
8. The President of Eritrea, Isaias Afwerki, expressed his enthusiasm about the reestablishment of diplomatic relations between his country and Ethiopia.
9. In the wake of the new tariffs imposed on Canadian products by the U.S., the Prime Minister of Canada, Justin Trudeau, highlighted the need for fewer trade barriers between Canadian provinces.
10. The Independent Qualification Commission of Albania dismissed four Constitutional Court judges after a vetting process, while three additional judges resigned to their posts. As a result, only two Court’s judges remain in office.
11. The Polish Supreme Court judge, Malgorzata Gersdorf, claimed that her tenure ends in 2020, in response to the government’s contention according to which it has already expired. Meanwhile, the Parliament is debating a bill intended to establish a quick procedure to fill judicial vacancies, and to appoint a new Supreme Court President.
12. The Parliament of Egypt passed a law preventing senior military officers from being prosecuted.
13. The Hong Kong security secretary, John Lee, said that the government is considering the possibility of banning the separatist Hong Kong National Party.
14. The Minister of Justice and Equality of Ireland, Charles Flanagan, published the legislation attempting to repeal the constitutional ban on blasphemy.
15. The Turkish government has proposed a new bill to maintain, during three years, some measures implemented during the two-year-long state of emergency which ended on July 19, 2018.
16. The Parliament of Israel approved a basic law declaring the state of Israel as the nation-state of the Jewish people.
17. The European Commission referred Hungary to the European Court of Justice for its domestic laws’ noncompliance with EU migration and asylum rules.
18. Pablo Llarena-Conde, judge of the Spanish Supreme Court, revoked the extradition requests filed against six Catalonian separatist leaders, including former President of the Government of Catalonia, Carles Puigdemont.
19. WhatsApp was warned by the Information and Technology Ministry of India about the possibility of being sued in case the platform does not take further steps to tackle the spread of false viral messages that have provoked lynchings around the country.
20. Duberli Rodríguez, President of the Peruvian Supreme Court, resigned to his post amidst a corruption scandal involving alleged payments to obtain favorable judicial decisions.
21. The Organization of American States condemned the violence in Nicaragua committed against members of the Catholic clergy and against protesters.

New Scholarship

1. David Landau, Yaniv Roznai & Rosalind Dixon, Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America, in Alexander Baturo & Robert Elgie (eds), Politics of Presidential Term Limits (2018-forthcoming) (examining the interaction between term limit provisions and the unconstitutional constitutional amendment doctrine in Latin America, and arguing that transnational anchoring holds some promise in clarifying the proper scope of control of constitutional change regarding term limits)
2. Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy (2018) (showing how constitutional arrangements can hinder or hasten democratic decline, and proposing some practical steps to design laws and constitutional rules capable of managing the risk of democratic decline)
3. Mara Malagodi, Challenges and opportunities of gender equality litigation in Nepal, International Journal of Constitutional Law (2018) (explaining the pivotal role the Supreme Court of Nepal has played in advancing the rights of Nepali women)
4. Marco Goldoni & Michael A. Wilkinson, The Material Constitution, Modern Law Review (2018) (offering a theory of the material constitution, and outlining the four ordering forces behind the idea of the material constitution)
5. Richard S Kay, Formal and Informal Amendment of the United States Constitution, The American Journal of Comparative Law (2018) (analyzing Article V of the U.S. Constitution, possible limits to the amendment power, and alternative channels of constitutional change)
6. Anna Sledzinska-Simon, The Rise and Fall of Judicial Self-Government in Poland: On Judicial Reform Reversing Democratic Transition, in David Kosař (ed), special issue of the German Law Journal on The Rise and Fall of Judicial Self-Government in Europe (2018-forthcoming) (arguing that the judicial reform introduced in 2017 in Poland marks the end of the judicial self-government as we know it)
7. Mathias Reimann, Bilingual Legal Education in the United States: The Deficient Status Quo and a Call for More Action, The American Journal of Comparative Law (2018) (claiming that U.S. Law Schools should make a greater effort to let their American students reap the benefits of foreign languages, and to counter the negative effects of nationalism and isolationism)
8. Anine Kierulf, Judicial Review in Norway (2018) (telling the story of Norwegian constitutionalism in light of constitutional law cases and debates, and arguing that this model of judicial review provides a useful perspective on the traditional dichotomy of American and European models of judicial review)
9. Carlos Bernal-Pulido, Diego González, María Fernanda Barraza & Nicolás Esguerra, The State of Liberal Democracy, in Richard Albert, David Landau, Pietro Faraguna & Simon Drugda (eds), I-CONnect-Clough Center: 2017 Global Review of Constitutional Law (2018) (examining the 2017 Colombian Constitutional Court’s landmark rulings concerning the constitutionality of the constitutional amendments implementing the peace agreement between the Government and FARC, and regarding the protection of the environment vis-à-vis economic development)
10. Graham Butler, Solidarity and its limits for economic integration in the European Union’s internal market, Maastricht Journal of European and Comparative Law (questioning the role that solidarity as a legal principle, value, and concept plays in EU law, and how far its premise can be stretched for the purposes of the EU’s internal market)
11. Anthony Michael Kreis, Stages of Constitutional Grief: Democratic Constitutionalism and the Marriage Revolution, The University of Pennsylvania Journal of Constitutional Law (2018) (positing an interactive theory of courts and social movements, and developing it in the framework of marriage equality cases)
12. András Jakab, What is Wrong with the Hungarian Legal System and How to Fix it, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2018 – 13 (2018) (exploring the constitution-making process of 2010-2011 in Hungary from an institutionalist perspective, and arguing that the approach to institutions by Hungarian lawyers fails to recognize the existence of certain components which are essential to institutions such as the actual practices of rules and some narratives)

Calls for Papers and Announcements

1. The Laureate Program in Comparative Constitutional Law of Melbourne Law School invites outstanding female doctoral and female early career researchers to apply to the 2019 Kathleen Fitzpatrick Visiting Fellowships in Comparative Constitutional Law. Interested researchers must submit their applications by 2 September 2018.
2. The University of Leipzig calls for speakers for its 1st International Summer School on Human Rights Protection under the ECHR, to be held in September 2019. Applications should be sent by July 31, 2018.
3. The University of Salzburg invites submissions for its forthcoming workshop on Fiction and Law. The deadline for submissions is July 25, 2018.
4. The Institute for International Law and European Law at the University of Göttingen invites contributions for its upcoming 2019 ESIL Research Forum focused on “The rule of law in international and domestic contexts: synergies and challenges”. Scholars must submit abstracts of proposed papers by September 30, 2018.
5. The European University Institute calls for applicants to the Max Weber Programme for Postdoctoral Studies. Applications should be sent by October 18, 2018.
6. The Centre of Law and Society at Cardiff University invites early career scholars and emerging researchers to apply to the CLS research visitor fellowships in the academic year 2018/19. Applications should be submitted by September 15, 2018.
7. Católica Law Review (legal journal of the Católica Research Centre for the Future of Law of the School of Law of Universidade Católica Portuguesa) is currently inviting submissions for the journal’s special issue on Public Law. Interested scholars should send their contributions no later than September 30, 2018.
8. TC Beirne School of Law at The University of Queensland convenes a Research Seminar on ‘Constitutional Unamendability and Comparative Method’ to be held on 10 August 2018, with prof. Adrienne Stone as guest speaker.
9. The International Association for Philosophy of Law and Social Philosophy welcomes submissions for its 29th World Congress on “Dignity, Democracy, Diversity”, to be held at the University of Lucerne on July 7-13, 2019. The deadline for submissions is December 31, 2018.
10. The Max Planck Institute for Comparative Public Law and International Law calls for engaged listeners to participate in its fourth workshop on the Law of Peace and War which will take place on November 8-9, 2018. Interested participants should send their applications by October 1, 2018.
11. The Centre on Constitutional Change (University of Edinburgh) invites abstract proposals for its workshop entitled “Majority Nationalism in Plurinational States: Responding to Challenges from Above and Below”, that will take place on February 25-27, 2019. Abstracts must be sent on or before September 15, 2018.
12. The University of Sheffield seeks to fill a Senior-Lecturer-in-Law position and invites applicants with research interests focused on UK constitutional law, UK administrative law, Comparative public law, Constitutional history, and/or Constitutional theory. Interested academics should apply by August 16, 2018.

Elsewhere Online

1. Djordje Gardasevic, Croatia’s constitutional dilemma: Popular initiatives versus minority rights, Constitutionnet
2. Akhil Reed Amar, A Liberal’s Case for Brett Kavanaugh, The New York Times
3. Upendra Baxi, A constitutional renaissance, The Indian Express
4. Tom McCarthy, Is John Roberts poised to become the supreme court’s key swing vote? The Guardian
5. Jürgen Habermas, Are We Still Good Europeans? Social Europe
6. Ellen T. Tordesillas, Landmines in the Duterte draft Constitution, ABS-CBN
7. Rokhaya Diallo, France’s dangerous move to remove ‘race’ from its constitution, The Washington Post
8. Paul Bovend’Eert, How the Dutch Cannot Make Up Their Minds on Accepting Referendums, IACL-AIDC Blog
9. Alberto Alemanno, Time for Europe to embrace democracy, Politico
10. Peter Ramsay & Chris Bickerton, Brexit: Facing up to sovereignty in Ireland, The Irish Times
11. Pierre de Vos, Why the Failure of Presidents Zuma and Ramaphosa to Deal with the Secrecy Bill is Constitutionally Delinquent, Constitutionally Speaking
12. Lana Borenstein, The Senate’s amendments to the Cannabis Bill: Just a ‘sober second thought’ or high on power? Centre for Constitutional Studies
13. Morris Odhiamb, Kenya: Only civil society can stop elites changing the constitution, African Arguments
14. Leah Trueblood, More Good Days for Democracy: The Report of the Independent Commission on Referendums, U.K. Const. L. Blog
15. David Bilchitz, Germany’s Moral Responsibility to Support a Treaty on Business and Human Rights, Völkerrechtsblog
16. Andrew Keane Woods, Do Constitutional Rights and Human Rights Matter? Lawfare
17. Meg Russell, The failed Senate reform in Italy: international lessons on why bicameral reforms so often (but not quite always) fail, The Constitution Unit
18. Shireen Morris, The Uluru Statement from the Heart: Why I have hope, Pursuit