What’s New in Public Law

—Gaurav Mukherjee, S.J.D. Candidate, 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. On 23 February, the Constitutional Court of South Africa held that under section 15 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004, domestic courts have extra-territorial jurisdiction to try offences committed outside of South Africa.
2. The United States Supreme Court held that defendants who plead guilty retain the right to challenge their convictions as unconstitutional, which some say could inject uncertainty into a criminal justice system built on plea bargains.
3. The U.K. Supreme Court held that the police have a positive duty toward individual victims of certain crimes to conduct an effective investigation under Article 3 of the European Convention on Human Rights.
4. The Supreme Court of Ireland began deliberations on a case concerning the constitutional rights of an unborn child.
5. The Federal Constitutional Court of Germany issued its Annual Statistics Report for 2017.
6. The Supreme Court of India directed that the government amend the Indian electoral law to include the disclosure of sources of income of candidates to national elections, and not just their assets.
7. The Lesotho High Court issued its judgment in Private Lekhetso Mokhele and Others v The Commander, Lesotho Defence Forces, which sets an important precedent on the rights of pregnant employees in the military.

In the News

1. Civil rights groups petitioned the Constitutional Court of South Africa to quash a rule signed by former president Jacob Zuma that says evidence produced at a judicial inquiry into allegations of influence-peddling cannot be used in a criminal case.
2. The Maldives’ Parliament extended the state of emergency in the country by another 30 days, absent the necessary parliamentary procedure.
3. Pro-election activists in Thailand petitioned the Constitutional Court to strike down the ruling regime’s ban on political gatherings, which they said violates their constitutional rights.
4. The Federal Constitutional Court of Germany listed for hearing a challenge to the Unified Patents Court in the EU.
5. The United States Court of Appeals for the Fourth Circuit upheld a district court injunction on the Trump ban on the entry of citizens of Muslim majority countries, holding that it discriminated on the basis of religion. Read the judgment here.
6. The United States Supreme Court held that a federal law protecting whistle-blowers in securities cases must be read narrowly to bar many retaliation suits from people who say they were fired for reporting wrongdoing. Read the judgment here.
7. The Supreme Court of Pakistan disallowed former Prime Minister Nawaz Sharif, currently under investigation over allegations of corruption, from leading the PML-N party.
8. The High Court of Kenya heard a petition on 22 February filed by the Kenyan National Gay and Lesbian Rights Commission (NGLHRC) seeking to strike down sections of the country’s laws that criminalize same sex relations.
9. More than five million people have signed up to vote in Burundi’s controversial constitutional referendum in May and elections in 2020, which could allow President Pierre Nkurunziza to remain in power until 2034.
10. Syria’s government on 13 February rejected efforts led by the United Nations to form a committee to rewrite Syria’s constitution.
11. Libya’s Supreme Court blocked legal challenges from lower courts to a draft constitution on 14 February.
12. In Indonesia, the Law on Representative Assemblies, permitting parliament representatives to press charges against those who “undermine its honor or that of its members”, was passed by the House of Representatives, which critics say will hamper criticism of Indonesian politicians and reduce their accountability if signed into law by the President.
13. The UK Supreme Court began hearing a case on employment rights of non-formal workers, the outcome of which could have implications on the regulation of the so-called ‘gig’ economy.

New Scholarship

1. Scott Stephenson, The Rise and Recognition of Constitutional Statutes (2017), in Richard Albert and Joel Colon-Rios (eds.), Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, and Applications (Routledge, 2018), studying the influence that constitutional statues have on the traditional distinction between systems with a “capital-C constitution”, and those without one.
2. Théo Fournier, From Rhetoric to Action: A Constitutional Analysis of Populism (2018), analyzing populism through the scope of constitutional law by examining the translation of populist rhetoric used by Victor Orban of Hungary and Marine LePen of France, into concrete constitutional amendments.
3. Narnia Bohler-Muller, Michael Cosser, and Gary Pienaar (eds.), Making the road by walking: The evolution of the South African Constitution (2018), presenting a collection of essays on prominent judges of the Constitutional Court of South Africa and their contribution to the rights jurisprudence of the court.
4. Robert D Cooter and Michael D. Gilbert, Constitutional Law and Economics (2018). Malcolm Langford and David S. Law (eds.), Research Methods in Constitutional Law: A Handbook (Edward Elgar), providing a snapshot of the ways in which this underexplored field combines positive, normative, and interpretive analysis, to shed light on six processes which sustain constitutions: bargaining, voting, delegating, entrenching, adjudicating, and enforcing.
5. Dylan Lino, Indigenous Recognition, in Rosalind Dixon (ed), Australian Constitutional Values (Hart Publishing, 2018, forthcoming), examining the prospects for the recognition of Aboriginal and Torres Strait Islander peoples to serve as a value in interpreting the Australian Constitution.
6. Dimitry Kochenov and Matthijs van Wolferen, Dialogical Rule of Law and the Breakdown of Dialogue in the EU (2018), arguing that while the EU system offers a wide understanding of dialogical frameworks between national and supranational courts, it is under threat of dissolution.
7. András Sajó and Renáta Uitz, The Constitution of Freedom (2017), providing an overview of the doctrinal and empirical bases of constitutionalism from a comparative perspective.
8. András Jakab and Viktor Oliver Lorincz, Rule of Law Indices and How They Could Be Used in the EU Rule of Law Crisis (2018), proposing a fresh look at the application of existing rule of law indices in evaluating the rule of law crisis within the EU.

Calls for Papers and Announcements

1. The Centre for Human Rights, University of Pretoria called for applications to a one-week intensive short course on judicial enforcement of socio-economic rights in Africa from 14 to 18 May 2018.
2. The Government and Law Research Group of the University of Antwerp invite papers for a conference in September 2018 on law-making in multi-level settings: federalism, Europe, and beyond.
3. The University of Groningen issued a call for papers for a conference on 29 November 2018 on Blockchain, Public Law, and Public Trust.
4. The European University Institute announced a vacancy for a Research Assistant in the Robert Schuman Centre for Advanced Studies in the field of “Naturalization Law and Policy: A Global Perspective”.
5. The Max Planck Institute Luxembourg invites young researchers to actively participate in a colloquium on the “Current Challenges for EU Cross-Border Litigation in a Changing Procedural Environment” to be held on 26 September 2018.
6. The Portsmouth Law School at the University of Portsmouth and the European University Institute (EUI) have issued a call for papers for a 2-day international conference on “Economic Constitutionalism: Mapping its Contours in European and Global Governance” on 14th and 15th June 2018.
7. The Federal University of Rio de Janeiro issued a call for papers for the Contemporary Legal Theory Journal.
8. The University of Trento invited applications to a summer school on “Learning and Practising Comparative Methodology in Constitutional Adjudication and Research”.
9. The American Society of International Law will hold a roundtable (April 4-7, 2018) on “New Perspectives in International Legal Theory”, which affords an opportunity for up to three scholars to present and receive feedback on unpublished papers on topics related to international legal theory.

Elsewhere Online

1. Dilek Kurban, Think Twice before Speaking of Constitutional Review in Turkey, Verfassungsblog, 20 February 2018.
2. Paul Craig, The Withdrawal Bill, Status and Supremacy, U.K. Constitutional Law Blog, 19 February 2018.
3. Nidhal Mekki, The fourth anniversary of the Tunisian Constitution: The unfinished transformation, Constitution Net, 19 February 2018.
4. Grietje Baar, Symposium on the Third Option: ‘Not Man, Not Woman, Not Nothing’: ‘The Politics of Recognition and Emancipation Through Law’, Blog of the IACL, AIDC, 13 February 2018
5. Pierre de Vos, Removing President Zuma: What are the options?, Constitutionally Speaking, 13 February 2018.
6. Meg Russell and Jack Sheldon, A ‘dual mandate’ English Parliament: some key questions of institutional design, Constitution Unit: UCL, 13 February 2018.
7. Viktor Zoltan Kazai, The Emerging Trend of Parliamentary Performance: Freedom of Expression in the Hungarian National Assembly, Verfassungsblog, 12 February 2018.
8. Hayley J. Hooper, Balancing Access to Justice and the Public Interest: Privacy International and Ouster Clauses in the Broader Constitutional Context, K. Constitutional Law Blog, 12 February 2018.