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 Pakistan concluded hearings in the politically sensitive ‘Memogate’ matter which had been brought under its suo motu jurisdiction.
2. Kenya’s High Court will rule this month on the validity of Section 162 of the Penal Code, which criminalizes gay sex.
3. The Supreme Court of Canada held that the nonconsensual filming of 27 students between the ages of 14 and 18 by a school teacher was illegal, despite arguments that the students did not have a reasonable expectation of privacy in school.
4. The Constitutional Court of South Africa commenced hearings on whether the South African President is under a constitutional obligation to disclose reasons and a record for constituting or changing Cabinet.
5. Thailand’s Constitutional Court announced that it will consider a ban on a party that nominated princess for prime minister, raising the prospect of a further set-back for opposition chances in a general election.
6. In a blow for its institutional integrity, the Supreme Court of India summarily dismissed two court officials for allegedly tampering with an uploaded judicial order that wrongly created an impression that the industrialist Anil Ambani had been exempted from personal appearance in a contempt case.
7. The High Court of Australia rejected an attempt to reopen a controversial ruling which effectively enabled indefinite immigration detention in Australia.
8. The Supreme Court of India refused to monitor an ongoing federal investigation into the multi-crore Saradha chit fund scam in West Bengal, a state in Eastern India, which is being seen as a welcome development in a jurisdiction where judicial overreach is not unheard of.
9. The German Federal Court of Justice (Bundesgerichtshof) Germany’s supreme court for civil and criminal cases, held that booking cars for hire with professional drivers through the app Uber Black, the luxury chauffeur service, is prohibited.

In the News

1. The Union Solidarity and Development Party in Myanmar put forward a bill to amend Article 261 of the Constitution that would, if approved, see regional chief ministers elected by local legislatures rather than appointed by the president.
2. The Supreme Court of Spain began the trial of a dozen accused over their alleged roles in the Catalan independence crisis that pitched Spain into its worst political turmoil for four decades.
3. Greece’s parliament voted to revise several articles in the country’s constitution, aiming to facilitate the prosecution of corrupt politicians, the prime minister’s office said.
4. Donald Trump declared a national emergency in a bid to fund his promised wall at the U.S.-Mexico border without congressional approval, an action Democrats vowed to challenge as a violation of the U.S. Constitution. Constitutional analysis of this development can be found here.
5. The Egyptian Parliament approved sweeping measures that would allow President Abdel Fattah el-Sisi to extend his rule until 2034 and enshrining in law the military’s dominance over the country.
6. African National Congress MP Thoko Didiza was elected as chairwoman of the ad-hoc committee established to amend section 25 of the South African Constitution to explicitly allow for the expropriation of land without compensation.
7. The ruling Liberal Democratic Party in Japan adopted a concise plan for its goal of revising the nation’s pacifist Constitution at its annual convention, apparently in consideration of local and national elections later this year.
8. Ukraine’s Parliament adopted amendments to the Constitution on Ukraine’s foreign policy on EU and NATO membership, providing for changes to the preamble of Ukraine’s Constitution, according to which, the parliament confirms the European identity of the Ukrainian nation and irreversibility of the European and Euro-Atlantic course of Ukraine.
9. Human rights and education experts from around the world met in Abidjan, Côte d’Ivoire to adopt the Abidjan Principles which aim to “clarify existing legal obligations that States have regarding the delivery of education, and in particular the role and limitations of private actors in the provision of education”.
10.  The Länd of Brandenburg became the first in Germany to pass an act on gender parity in politics, the goal of the Parity Act is to counter the current underrepresentation of women in the Parliament of Brandenburg, where they make up 38.6% of parliamentarians, even though they represent 51.02% of the population eligible to vote.

New Scholarship

1. Vivek Maru and Varun Gauri (eds.), Community Paralegals and the Pursuit of Justice, 2018 (providing an account of community paralegals – sometimes called barefoot lawyers – who demystify law and empower people to advocate for themselves. The book focuses on paralegal movements in six countries, brings together rich, vivid stories of paralegals helping people to take on injustice, from domestic violence to unlawful mining to denial of wages).
2. Saikrishna Bangalore Prakash, Of Synchronicity and Supreme Law, 132 Harvard Law Review 1220 (2019) (offering a comprehensive account of existing federal lawmaking practices as they relate to time. The article also considers how those timing practices have evolved over US history and argues that the Constitution requires some measure of synchronicity within each form of lawmaking.).
3. Democracy Reporting International, La Mise en Oeuvre De La Constitution Tunisienne au Niveau du Cadre Juridique (2019) (reporting on the progress of the implementation of the Tunisian Constitution in the following areas: human rights, in particular civil and political rights; separation and balance of powers; the independence of the judiciary; accountability and transparency mechanisms; the establishment of independent constitutional bodies and decentralization) (in French and Arabic).
4. Katharine S.E. Cresswell Riol, The Right to Food Guidelines, Democracy and Citizen Participation. Country case studies, 2019 (providing an an overview of the right to adequate food, accountability and democracy, and an introduction to the history of the development of the right to adequate food and the Right to Food Guidelines. The book also focuses on the effectiveness of the Right to Food Guidelines as both a policy-making and monitoring tool, based on the analysis of the guidelines and the BRICS states).
5. Ellis M. West, The Free Exercise of Religion in America Its Original Constitutional Meaning, 2019 (providing a historic and jurisprudential analysis of the original meaning of the two religion clauses of the First Amendment of the US Constitution).
6. The Harvard Law Review Board, An Abdication Approach to State Standing, 132 Harv. L. Rev. 1301 (2019) (putting forth an alternative approach to state standing in US constitutional law cases that would offer lasting access to judicial review in cases where the federal government has failed to meet its enforcement obligations under federal law, should the power of special solicitude be diminished).
7. Panos Kapotas and Vassilis P. Tzevelekos (eds.), Building Consensus on European Consensus Judicial Interpretation of Human Rights in Europe and Beyond, 2019 (presenting essays based on three themes: a) conceptualization of European consensus, its modus operandi and its effects; b) critical evaluation of its legitimacy and of its outputs; c) comparison with similar methods of judicial interpretation in other legal systems).
8. Pietro Faraguna, Regulating Religion in Italy. Constitution Does (not) Matter, 7(1) Journal of Law, Religion and State (2019) (focusing on state-church relations and on the peculiar implementation of the “idea of secularism” in Italy, while arguing that the transformation of the constitutional position of religion did not occur within the formal constitution, but in the “living constitution”).
9. Jacques de Ville, Constitutional Theory: Schmitt after Derrida, Birbeck Law Press, 2019 (advancing a new reading of the central works of Carl Schmitt and, in so doing, rethinking the primary concepts of constitutional theory).
10. The Harvard Law Review Board, Equal Dignity — Heeding Its Call, 132 Harv. L. Rev. 1323 (2019) (elaborating on the principles underlying equal dignity, discussing the specific doctrinal implications that equal dignity should have on substantive due process and equal protection inquiries, while also assessing whether lower courts have thus far properly heeded equal dignity’s call. The Note also argues that equal dignity should have particular salience to the growing judicial recognition of the rights of transgender individuals.
11. B. C. Smith, Judges and Democratization. Judicial Independence in New Democracies, 2019 (examining the paradox of judicial activism arising from the independence endowed upon the judiciary by post-authoritarian constitutions. The book asks how, in the context of this endowed authority, such accountability can be made compatible with the preservation of judicial independence when the concept of an accountable, independent judiciary appears to be a contradiction in terms).
12. Larry Barnett, Societal Agents in Law, 2019 (delving into the macro-sociological sources of law concerned with society, such as important social activities in a structurally complex, democratically governed nation. The book offers an alternative to the almost-total monopoly of theory and descriptive scholarship in the macrosociology of law, comparative law, and history of law, and underscores the value of a mixed empirical/theoretical approach).
13. Kathryn McNeilly, Human Rights and Radical Social Transformation. Futurity, Alterity, Power, 2019 (seeking to reassess the radical possibilities for human rights and explore how rights may be re-engaged as a tool to facilitate radical social change via the concept of ‘human rights to come’. This idea proposes a reconceptualization of human rights in theory and practice which foregrounds human rights as inherently futural and capable of sustaining a critical relation to power and alterity in radical politics).

Call for Papers and Announcements

1. The annual conference of the Australasian Society of Legal Philosophy (ASLP) will be hosted by the Julius Stone Institute of Jurisprudence at the University of Sydney on 18 – 19 July 2019. The ASLP welcomes philosophical or theoretically-oriented papers from any field of legal inquiry. Further details here. 
2. Applications are invited for a full-time Research Fellow for the Access to Justice for Social Rights: Addressing the Accountability Gap project funded by the Nuffield Foundation, in the School of Law, University of Stirling. The Fellowship offers early career researchers the opportunity to lead and conduct research on the future of social rights protection across the UK.
3. The Comparative Constitutions Project announced that Constitute en español is now live.
4. The American Society of Comparative Law has issued a call for proposals for concurrent panels, and a works in progress conference to be held in association with the ASCL Annual Meeting on “Comparative Law and International Dispute Resolution Processes”.
5. The Cluster of Excellence “Contestations of the Liberal Script” (SCRIPTS) at the Freie Universität Berlin, directed by Professor Tanja A. Börzel and Professor Michael Zürn, is offering up to four postdoctoral fellowships. Applications are sought in research areas in public law including challenges to global liberal constitutionalism from the rom European rightwing populism to African communitarianism to China’s economic system.
6. The London School of Economics and Political Science, the WZB Berlin Social Science Center, and the European University Institute are pleased to invite submissions for the third European Junior Faculty Forum for Public Law and Jurisprudence to be held at the London School of Economics and Political Science on June 10-11, 2019. The deadline for submission is April 7, 2019.
7. The WZB Berlin Social Science Center hosts on 6 July 2019 the Scholars Workshop: New Thinking Global Constitutionalism.
8. Submissions are invited from comparative law scholars around the world for a works-in-progress roundtable on all subjects of comparative law at The University of Texas at Austin on May 21, 2019.

Elsewhere Online

1. Kim Lane Scheppele, Trump’s Non-Emergency Emergency, Verfassungsblog, 15 February.
2. Petra Bárd, To leave or not to leave? Viktor Orbán’s war against George Soros and the CEU dilemma, Reconnect Blog, 14 February
3. Grégoire Webber and Paul Yowell, Legislated Rights: Symposium, Judicial Power Project, 14 February 2019 (all six posts from the symposium on the Webber- Yowell book can be found in the hyperlink).
4. Leah Litman, The Substance of the Supreme Court’s Procedure, Take Care, 13 February.
5. Mercy Muendo, Kenya plans to place public security above data privacy. That’s a bad idea, The Conversation, 12 February
6. Yuvraj Joshi, Affirmative Action Is About to Face a Judicial Assault, Slate, 12 February
7. Leah Litman, Justice Kavanaugh Said No On Roe, Take Care, 11 February.
8. Federico Fabbrini, Brexit: Through the Looking Glass, Oxford Constitutional Law, February 2019
9. Nancy Agutu, Why Kenyan Deputy President Ruto prefers an official opposition to the creation of post of prime minister, Constitution Net, 11 February
10. David R. Cameron, EU doesn’t budge on Irish “backstop” but talks resume on future relationship, Yale MacMillan Centre, 11 February
11. Joaquín Urías, The Spanish Model of Democracy Facing Trial, Verfassungsblog, 11February.
12. National Constitution Center, How a national tragedy led to the 25th amendment, National Constitution Center, 11 February
13. Colm McCarthy, Why Referendums in Ireland Work Better than in the UK, Verfassungsblog, 11February.
14. Louis Menand, The Supreme Court Case That Enshrined White Supremacy in Law, The New Yorker, 4 February
15. Trésor M. Makunya, An agenda for constitutional reform in Democratic Republic of Congo (DRC), ConstitutionNet, 5 February
16. Zachary Elkins, Compared with what? How to Read the Cuban Constitutional Reforms, Medium, 6 February