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 Constitutional Court of Indonesia upheld the threshold (20 percent of the seats at the House of Representatives or 25 percent of the popular vote) for a party or a coalition of parties which is required for political parties to nominate presidential candidates.
2. The Supreme Court of Canada refused to hear the appeal of a Sikh man and woman who were prohibited from entering Quebec‘s legislature while wearing kirpans (a ceremonial dagger carried by members of the Sikh religion).
3. Spain’s Supreme Court said it had ended its investigation against 18 Catalan independence leaders who will now face trial, likely at the beginning of next year.
4. The Supreme Court of the Maldives rejected President Abdulla Yameen’s petition to annul the September 23 election.
5. The Supreme Court of Papua New Guinea dismissed a case brought by 731 Manus Island refugees seeking enforcement of their constitutional rights, which comes two years after the court had ruled that their detention was unlawful, after which the refugees had applied for compensation and orders they be resettled in another country.
6. Romania’s Constitutional Court struck down dozens of changes to the criminal code made by the ruling Social Democrats that had been criticized by the European Union, diplomats and magistrates.
7. The Constitutional Court of Zimbabwe struck down section 27 of the Public Order and Security Act, which gave authorities power ban public demonstrations, as unconstitutional.
8. The Supreme Court of India referred a matter concerning the appointment procedure of the country’s Election Commissioner to a five judge Constitution Bench, in a case which may have an impact on its already fraught relationship between the executive and the judiciary.

In the News

1. Hungary passed a law in pursuance of a constitutional amendment in June making rough sleeping a crime and empowering police to order homeless people to move into shelters, which rights advocacy groups say is cruel and does little to address underlying problems.
2. Egypt’s parliament approved a three-month extension of a nationwide state of emergency, citing “security challenges facing the country and the importance of fighting terrorist movements targeting Egypt.”
3. Kosovo’s lawmakers gave preliminary approval to legislation expanding the size and competencies of the country’s security forces during a session that was boycotted by ethnic Serb representatives.
4. A 48-day extraordinary Diet session is set to open next week in Japan, within which a number of issues key to the nation’s future are set to be debated — including drastic revision of immigration law and a draft proposal from the ruling Liberal Democratic Party to revise the war-renouncing Article 9 of the Constitution.
5. The Nigerian Senate passed a heavily revised version of the Electoral Act Amendment Bill, with changes to technology used in the conduct of elections, criteria for candidates, the limiting of campaign expenses, and addressing problems related to the omission of names of candidates or logo of political parties.
6. Slovak parliament failed to pass an amendment to the Constitution that would have changed the process of selecting Constitutional Court judges.
7. The Foreign Minister of Syria informed a top U.N. envoy that the drafting of a new constitution was a “sovereign matter” up to the Syrian people, potentially adding to the difficulty in finding a compromise solution to a civil conflict which has killed hundreds of thousands, and displaced millions.

New Scholarship

1. Tamir Moustafa, Constituting Religion Islam, Liberal Rights, and the Malaysian State, Cambridge University Press, 2018 (using the case study of Malaysia, the book examines how legal arrangements which enshrine both Islam and liberal rights regimes enable litigation and feed the construction of a ‘rights-versus-rites binary’ in law, politics, and the popular imagination).
2. Julia Dehm, Highlighting inequalities in the histories of human rights: Contestations over justice, needs and rights in the 1970s, 1 Leiden Journal of International Law, 2018 (considering the ways in which concerns about economic equalities, both among and within countries, were taken up in human rights debates of the 1970s and how concerns about economic inequalities impacted on discussions about the possibilities, objectives and conceptions of rights).
3. Josh Chafetz and David E. Pozen, How Constitutional Norms Break Down, 65 UCLA Law Review 1430 (2018) (exploring some of the different modes in which unwritten norms break down in the United States constitutional system and the different dangers and opportunities associated with each).
4. Tom Gerald Daly, Relation of Constitutional Courts / Supreme Courts to IACtHR, Max Planck Encyclopedia of Comparative Constitutional Law, 2018 (laying out the relationship between the Inter-American Court of Human Rights and the constitutional or supreme courts of the twenty States Parties to the American Convention on Human Rights).
5. Balázs Fekete, Interpreting the History of Modern Comparative Law: Beyond Descriptive Linearity. The Case of Historical-Comparative Jurisprudence Rivista di diritti comparati 2018(2) (providing a challenge to the linear historic narrative trajectory of comparative law, combining English and Germanic law approaches).
6. Fred O. Smith Jr., Abstention in the Time of Ferguson 131 Harvard Law Review 2283 (2018) (arguing for a fresh look at carving up exceptions to the rule of barring federal lawsuits against state civil and criminal law regimes which criminalize poverty, in instances where such lawsuits could be used to address systemic constitutional issues).
7. Christopher Carothers, The Surprising Instability of Competitive Authoritarianism, 29(4) Journal of Democracy (October, 2018), (analyzing data sets from 35 countries, and arguing that competitive authoritarianism, which is the most type of hybrid regime combining authoritarian and democratic features, are unstable. The data indicates that most have either democratized or been replaced by new autocracies).
8. International IDEA, The Global State of Democracy. Key Findings and New Data, 2018 (presenting findings from new data from International IDEA’s Global State of Democracy Indices, which depict democratic trends across five main attributes of democracy, as well as a number of sub-attributes and subcomponents, and aims to provide a new, comprehensive measurement of democracy).

Call for Papers and Announcements

1. Boston College Law School, with support from the Institute for Liberal Arts, invites submissions from faculty and graduate students for a two-day conference on “Amending America’s Unwritten Constitution,” a timely subject of importance in history, law and politics. Interested scholars should email a CV and abstract no longer than 750 words by November 15, 2018 to tdo@law.utexas.edu on the understanding that the abstract will form the basis of the pre-conference draft to be submitted by April 15, 2019.
2. The Australian Human Rights Institute, in association with the University of New South Wales invites registration for its conference to be held on 14-16 May, 2019, with its focus on topics modern slavery and supply chains, new technologies and human rights, climate justice and human rights, populism, leadership and human rights, diversity and human rights.
3. International IDEA calls for applicants for the positions of Program Officer and Associate Program Officer at its offices in Yangon.
4. The Review of Constitutional Studies/Revue d’études constitutionnelles invites submissions in English or French for its issues 23(2) and 24(1).
5. McGill University’s Faculty of Law and the Peter Mackell Chair in Federalism invite submissions related to any aspect of federal theory or practice, by January 14, 2019 for Baxter Family Competition on Federalism.
6. The Centre of Excellence for International Courts (iCourts) and PluriCourts (Centre for the Study of the Legitimate Roles of the Judiciary in the Global Order) invites applications for a high-level summer school for PhD students working on international courts in their social and political context. The deadline for applications is 1 February 2019.
7. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Global & Senior Global Emile Noël Research Fellows who should be post-doctoral or tenured academics with a demonstrable background of legal scholarship. More senior academics (for example, faculty members tenured for ten years or more) at the discretion of the selection committee may be designated as Senior Global Emile Noël Research Fellows. The deadline is January 15, 2019. More information can be found here.
8. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Global Emile Noël Fellows from Practice and Government intended for government officials, judges, officials from international organizations and lawyers in private practice who wish to take a semester or academic year away from their posts to engage in serious scholarship. The deadline is January 15, 2019. More information can be found here.
9. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Post-Doctoral Global Emile Noël Fellows, who should be post-doctoral scholars who have attained their doctoral degrees within the past four years and who have not yet secured a tenure-track academic appointment at an institution. The deadline is January 15, 2019. More information can be found here.
10. The Jean Monnet Center at NYU School of Law calls for applications to be appointed as Visiting Doctoral Researchers, who should be doctoral candidates enrolled in a doctoral degree program at another institution abroad who wish to benefit from spending one year of their research at NYU School of Law. The deadline is February 15, 2019. More information can be found here.

Elsewhere Online

1. Mugambi Laibut, Popular initiatives to amend Kenya’s constitution: A misdiagnosis of the problem?, ConstitutionNet, 26 October.
2. Sachin Dhawan, Muslim Divorce and the Constitutional Right to Equality, Blog of the IACL-AIDC, 26 October.
3. Diego Werneck Arguelhes and Thomaz Pereira, What does a Bolsonaro Presidency mean for Brazilian Law? Reforms from the Far Right (Part I), and What does a Bolsonaro Presidency mean for Brazilian Law?: the Reforms and the Court (Part II), Verfassungsblog, 25 and 24 October.
4. Adam Feldman, Empirical SCOTUS: State fault lines that might lead to big cases before the Supreme Court, SCOTUS Blog, 24 October.
5. Letlhogonolo Mokgoroane, Expropriation without compensation: Democratizing South Africa’s economy?, ConstitutionNet, 24 October.
6. Max Steuer, On the Brink of Joining Poland and Hungary: The Night of Surprises in the Slovak Parliament, Verfassungsblog, 25 October.
7. Daniel Kelemen and Laurent Pech, Poland’s plan to get rid of independent judges has just hit a roadblock, The Washington Post, 25 October.
8. William Baude, Were the framers originalists (and does it matter)?, Balkinization, 24 October.
9. Robert Craig and Gavin Phillipson, Could the ‘Meaningful Vote’ End up in Court?, UK Constitutional Law Blog, 24 October.
10. Stephen Hopgood, What is the greatest challenge to the future of human rights? We the people are, The Conversation, 23 October.
11. Michal Ovádek, Constitutional Pluralism between Normative Theory and Empirical Fact, Verfassungsblog, 23 October.
12. David R. Cameron, With Brexit clock ticking, UK & EU still at odds over future relationship and Irish border, Yale MacMillan Center, 22 October.
13. Dylan Matthews, Can technocracy be saved? An interview with Cass Sunstein, Vox, 22 October
14. Pedro Villarreal, The Direct Justiciability of the Right to Health at the IACtHR. What is the Added Value?, Völkrrechtsblog, 22 October.
15. Hans Hosten and Christian Kaufhold, New Cuban Constitution: Towards a System Without a Single Leader, Verfassungsblog, 22 October.
16. Francisca Pou Giménez and Ana Micaela Alterio, Book Review: Transformative Constitutionalism in Latin America, Blog of the IACL-AIDC, 22 October.
17. Tarun Khaitan, Indian Democracy at a Crossroads, Verfassungsblog, 20 October.
18. Nathan Stephens-Griffin, Anti-fracking activists released on appeal – but criminalisation of nonviolent protest is new norm., The Conversation, 19 October.
19. David Phinnemore, Extending the Brexit transition period: what does it mean for a deal?, The Conversation, 19 October.
20. Javier Garcia Oliva, Challenges on the 40th anniversary of the Spanish constitution: Can Spain find a way to accommodate Catalonia?, LSE Blogs, 18 October.
21. Pieter Cannoot, V. v. Italy: on temporality and transgender persons., Strasbourg Observers, 19 October.
22. Bob Bauer, The Unintended Consequences of Enshrining Norms in Law, Lawfare Blog, 16 October.