What’s New in Public Law

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—Gaurav Mukherjee, S.J.D. Candidate in Comparative Constitutional Law, Central European University, Budapest.

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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 India found a prominent lawyer and civil rights activist guilty of contempt of court which drew extensive criticism from watchers of the court.
2. The Constitutional Court of South Africa dismissed former president Jacob Zuma’s leave to appeal application in the defamation case brought by former minister Derek Hanekom.
3. The High Court of Kenya dismissed a petition challenging the election of Justin Muturi as the Speaker of the National Assembly in August 2017.
4. The Brazilian Supreme Court decided to receive a constitutional appeal and will judge whether Apple can use the “iPhone” trademark in Brazil, even if another company has submitted it first.
5. The Court of Appeal of England and Wales ruled that the use of automatic facial recognition (technology by South Wales Police is unlawful.
6. The United States President vowed to fill any Supreme Court seat that might become vacant during the final months before the country’s elections in November.

In the News

1. Protests continued against the reelection of Belarusian premier Alexander Lukashenko – vote which many have decried as marred by fraud.
2. Bulgaria’s Prime Minister Boyko Borissov announced that his GERB party, the bigger partner in the  government coalition, will propose the convening of a Grand National Assembly to discuss a new Constitution drafted by the party.
3. The Algerian President Abdelmadjid Tebboune called on the relevant state institutions to initiate preparations for the holding of a referendum on a “profound constitutional amendment” that is under consideration.
4. Sri Lankan President Gotabaya Rajapaksa, who took charge of the Ministry of Defence, kicked off a constitutional controversy about whether the Premier, who is not an MP, could hold a portfolio, a question which might be taken to the Supreme Court for a ruling or get solved by a constitutional amendment.
5. Concerns were expressed over the Zimbabwe Cabinet’s recent move to introduce another code of conduct for political parties, with some arguing that this would lead to over-regulation as the rules for political parties were already provided for in other statutes like the Electoral Act.
6. The Chilean President Sebastián Piñera promulgated a constitutional reform that sets limits on the re-election of parliamentarians, mayors (mayors), councilors and local governors.

New Scholarship

1. Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-state Fusion in India 14 (1) Law & Ethics of Human Rights 49 (developing a typology of accountability mechanisms which have been corroded under the current Indian government regime since 2014 and contributed to democratic backsliding).
2. Gábor Halmai, Rights Revolution and Counter-Revolution: Democratic Backsliding and Human Rights in Hungary 14 (1) Law & Ethics of Human Rights 97 (discussing democratic backsliding after 2010 in Hungary, and how it affected the state of human rights in the country).
3. Mordechai Kremnitzer and Yuval Shany, Illiberal Measures in Backsliding Democracies: Differences and Similarities between Recent Developments in Israel, Hungary, and Poland 14 (1) Law & Ethics of Human Rights 125 (exploring the relevance of the discourse surrounding the decline of liberal democracy, and its possible relevance for Israeli democracy).
4. Roger Masterman, The constitutional influence of the Judicial Committee of the Privy Council on the UK apex court: institutional proximity and jurisprudential divergence? 71(2) Northern Ireland Legal Quarterly 285 (considering the relationship between the House of Lords/UK Supreme Court and the Judicial Committee and its effect on the importation of external influences into the UK’s legal system).
5.  Joshua Neoh, Law, Love and Freedom: From the Sacred to the Secular (2019) (sketching the moral vision that underlies our modern legal order and traces our secular legal ideas (constitutionalism versus anarchism) to their theological origins (monasticism versus antinomianism)).
6. Martin H. Redish, Constitutional Remedies as Constitutional Law (Northwestern Public Law Research Paper No. 20-21) (explaining the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches).
7. Cornelia Weiss, The State of Civil-Military Relations: Falling Short? (2020) (addressing constitutional mandates for military members to receive education in civil-military relations).
8. Alysia Blackham and Jeromey Temple, Intersectional Discrimination in Australia: An Empirical Critique of the Legal Framework  42(3) UNSW Law Journal 1 (bridging theoretical scholarship on intersectionality and empirical statistical evidence of how people experience discrimination in Australia to critically evaluate the extent to which Australian discrimination law is able to accommodate intersectional experiences of discrimination).
9. Nicola Tommasini, Pedro Riccetto & Yaniv Roznai, When Backlashes & Overrides Do Not Scare: The Power to Review Constitutional Amendments and the Case of Brazil’s Supreme Court, International Journal of Human Rights and Constitutional Studies, 2020 (focusing on Brazil’s Supreme Court as a case study and using rational choice theory to demonstrate how the power to review constitutional amendments gears the Court toward a “sincere” approach to constitutional adjudication).

Call for Papers and Announcements

1. The International Journal of Parliamentary Studies, a forthcoming, peer-reviewed international journal providing a forum for legislative, procedural, political, comparative, and other matters related to parliaments worldwide, issued a call for paper for its first issue. Manuscript submission deadline is 13th September.
2. Section 27, a rights-based organization working out of South Africa, released its report on Socio-Economic Rights and Austerity. 
3. The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics announced an online discussion on September 17 on COVID-19 and the Stakes for Democracy in South America.
4. The Melbourne Forum on Constitution Building in Asia and the Pacific will hold a series of four online seminars in September 2020, hosted by the Constitution Transformation Network and by International IDEA, the topic for which is “Representation in Democracies During Emergencies”.
5. The United States Institute of Peace announced an online discussion on August 18 on Sri Lanka’s Parliamentary Elections: A Test of Democratic Institutions.

Elsewhere Online

1. Mark Tushnet, Our Broken Constitution, Boston Review
2. Viktor Kazai, Blaming the People is not a Good Starting Point, Verfassungsblog
3. Joo-Cheong Tham, The COVID-19 pandemic highlights the need to address insecure work, LabourLawDownUnder
4. Samuel Moyn, Reform the Court, but Don’t Pack It, The Atlantic
5. Mark Elliot, The Judicial Review Review II: Codifying Judicial Review-  Clarification or Evisceration?, Public Law for Everyone
6. Aziz Huq, Bostock v. BLM, Boston Review
7. Michael Bryant, Has COVID-19 quietly killed Canadian Confederation?, Globe and Mail
8. Kosi Kedem, In order to address inefficiency, Ghana needs to change electoral system or reduce number of legislators, ConstitutionNet