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ROUNDTABLE E-Book GLOBAL ROUNDTABLE e-book DECEMBER 2O2O Assessing Constitutional Decay, Breakdown, and Renewal Worldwide Editors Tom Gerald Daly Wojciech Sadurski DEMOCRACY 2O2O ASSESSING CONSTITUTIONAL DECAY, BREAKDOWN & RENEWAL WORLDWIDE This e-book is a collection of short essays produced for the Global Roundtable webinar series organised by the International Association of Constitutional Law on 18-26 November 2020: ‘Democracy 2020: Assessing Constitutional Decay, Breakdown, and Renewal Worldwide’. The event was co-sponsored by the Laureate Program in Comparative Constitutional Law, funded by the Australian Research Council (ARC), and the Melbourne School of Government. These essays were initially published as a collection of blog posts on the event blog. International Association of Constitutional Law Association Internationale de Droit Constitutionnel CONTENTS Introduction iii Global Roundtable Summary iv Full Table of Contents vi Contributor Biographies xii GLOBAL CHALLENGES 1 Threats & Resilience 1 2 The Big Picture 21 REGIONAL OVERVIEWS 3 Americas 51 4 Middle East & Africa 73 5 Asia 94 6 Europe 119 COUNTRY SPOTLIGHTS 7 India & Sri Lanka 145 8 Hungary & Poland 174 RENEWAL 9 Saving Constitutional Democracy 205 Index 237 Acknowledgments 239 ii INTRODUCTION Even before the COVID-19 pandemic hit, 2020 was going to be a key milestone for those focused on the health of constitutional democracy worldwide. This year marks the tenth anniversary of the Fidesz government’s election in Hungary, which has laid down a template for the active dismantling of democratic governance through incremental and sophisticated use of law and policy. Since 2010, the number of liberal democracies worldwide whose health, or even endurance, is now in doubt has grown exponentially. Some states have closely followed the Hungarian script: Poland, under Law and Justice Party rule since 2015, has travelled toward constitutional break-down and after the elections in October 2019 saw the rule of that party consolidated. In other states we see incremental deterioration of the democratic system that follows a less clear ‘masterplan’ but which remains highly troubling, from the USA, to India under the BJP, to Brazil under far-right President Jair Bolsonaro. In the UK, ongoing constitutional crisis occasioned by Brexit has raised rule-of-law concerns, while in Australia recent legislation and State action has prompted soul-searching about core democratic freedoms such as free speech. The democratic trajectories of other states, such as El Salvador, Indonesia, Latvia, Malta, Malaysia, Nepal, and Sri Lanka remain understudied. Everywhere, democracy is in flux, challenged by interlocking trends like algorithmic governance, authoritarian populism, neo-liberalism, and corruption. The pandemic has accelerated negative trends worldwide, while, at the same time, intensifying the global focus on reinvigorating and renewing constitutional democracy. * * * The Global Roundtable of the International Association of Constitutional Law (IACL), held on 18- 26 November, brought together a group of leading and emerging experts, to engage in a global ‘stock-taking’ exercise, aiming to map the health and trajectory of key democracies world-wide, pin-point gaps in analysis, and divine what broader lessons may be learned from multiple contexts and experiences. Due to the pandemic we re-imagined what was initially envisaged as a 2-day event as a series of 9 inter-connected webinars across 2 weeks. This e-book is a collection of the 46 blog posts from Roundtable speakers, published on the event blog between 11 and 25 November. Our aim is to provide this collection in a more systematic format, to showcase what is a thought-provoking and truly global collection, and to allow readers to appreciate both the diversity of democratic trajectories in states worldwide and the themes resonating across multiple regions and contexts. Professor Wojciech Sadurski & Associate Professor Tom Daly Co-Convenors iii GLOBAL ROUNDTABLE SUMMARY The Virtual Global Roundtable ‘Democracy 2020: Assessing Constitutional Decay, Breakdown and Renewal Worldwide’ was a truly global event: 9 webinars took place on 18, 19, 24, 25, 26 November 2020. Each webinar was 2.5 hours long. 58 speakers from 5 continents presented across 5 days: The event’s aim was to bring together a group of leading and emerging experts, to engage in a global ‘stock-taking’ exercise, aiming to map the health and trajectory of key democracies world-wide, pin-point gaps in analysis, and divine what broader lessons may be learned from multiple contexts and experiences. Inter-related webinars: Due to the pandemic, what was initially envisaged as a 2-day event was re-imagined as a series of 9 inter-connected webinars across 2 weeks, devoted to an array of themes including global and regional overviews of constitutional democracy, challenges from algorithmic governance to voter suppression, understudied countries, key actors (e.g. courts, parliaments), and possible remedies and renewal of our democratic system. Each webinar lasted 2.5 hours: Webinar 1 - Global Challenges: Threats & Resilience – 18 November Webinar 2 - Global Challenges: The Big Picture – 18 November Webinar 3 - Americas: Constitutional Decay, Breakdown & Resilience – 19 November Webinar 4 - Middle East & Africa: Constitutionalism, Corruption & Courts – 19 November Webinar 5 - Asia: Non-Linear Constitutional Pathways – 24 November Webinar 6 - Europe: Constitutional Impatience & Uncertainty – 24 November Webinar 7 - Asia: Spotlight on India & Sri Lanka – 25 November Webinar 8 - Europe: Spotlight on Hungary & Poland – 25 November Webinar 9 - Saving Constitutional Democracy: Remedies & Renewal – 26 November Over 30 countries represented: The Roundtable featured speakers from, and analysis of, at least 30 countries and territories: Australia, Belarus, Brazil, Cameroon, Canada, Chile, China, France, Hungary, India, Indonesia, Israel, Kenya, Latvia, Lithuania, Malaysia, Malawi, Malta, Nepal, Nigeria, North Macedonia, Palestine, Philippines, Poland, Slovakia, South Africa, Sri Lanka, Turkey, UK, USA and Zimbabwe. Multimedia model & outputs: The Roundtable was organised as an innovative multimedia event, with a variety of outputs and activities beyond the webinars themselves, published before, during, and after the event. These include: • Event website at https://www.iacl-democracy-2020.org/. • 5 speaker interviews provided as videos on the event website – link here. • 46 blog posts published online (collated as this ebook) – link here. • Re-publication of some blog posts in major media outlets (e.g. Scroll.In in India). • 9 webinar recordings available at this link. iv 574 registered participants from 54 countries and territories: Argentina, Australia, Belgium, Bosnia and Herzegovina, Brazil, Canada, Chile, Colombia, Democratic Republic of the Congo, Czech Republic, Dominican Republic, Ecuador, Egypt, Finland, France, Germany, Georgia, Greece, Hong Kong SAR, Hungary, India, Indonesia, Ireland, Israel, Italy, Japan, Kenya, Malaysia, Mexico, Morocco, Nepal, Netherlands, New Zealand, Nigeria, North Macedonia, Norway, Palestine, Peru, Poland, Portugal, Philippines, Portugal, Romania, Russian Federation, Sierra Leone, Singapore, Slovakia, South Korea, Spain, Sri Lanka, Sweden, Turkey, United Arab Emirates (UAE), United Kingdom, United States of America. Diversity: Although the event was organised on the basis of a call for papers, every effort was made to ensure a diverse and inclusive event: • 25 of 58 speakers (43%) and 4 of 8 chairs were female. • 5 of 9 webinars had gender parity (1, 6 and 9) or female-majority (3 and 8). • 17 of 58 speakers (29%) were early career scholars (i.e. doctoral or post-doctoral researchers). Early career scholars were included as equal speakers within each webinar. • The IACL’s bilingual nature as an organisation was reflected in French-language versions of website information and program, and simultaneous interpretation at webinars featuring French speakers. Connect with the Association Become a Member Join a Research Group Write for the Blog click each icon to find out more v FULL TABLE OF CONTENTS Introduction iii Roundtable Summary iv Long Table of Contents vi Contributor Biographies xii GLOBAL CHALLENGES 1 Threats & Resilience 1 Technology, Inequality and Democratic Decline: is Australia at Risk? 2 Shireen MORRIS and Andrew BALL The Comparative Constitutional Law and Politics of Voter Suppression 9 Michael PAL How Constitutionalism Withers: Explaining the Changing Discourse of 13 Constitutionalism in Chinese Constitutional Scholarship since 1982 Han ZHAI and Chen HUANG Democratic Erosion and Abusive Judicial Review 18 Ros DIXON & David LANDAU 2 The Big Picture 21 La crise de la démocratie : Éléments d’explication 22 Bertrand MATHIEU Illiberal democracy and Undemocratic liberalism: Two Symmetrical Opposites 27 George KATROUGALOS Constitutional Democracy in the Age of Algorithms: The Implications of Digital Private 34 Powers on the Rule of Law in Times of Pandemics Oreste POLLICINO & Giovanno DE GREGORIO Can COVID-19 Save Democracy from Populism? 41 Tamar HOSTOVKSY BRANDES & Yaniv ROZNAI Constitutional Decay and the Crisis of the Liberal Imagination 45 Nigam NUGGEHALLI vi REGIONAL OVERVIEWS 3 Americas: Constitutional Decay, Breakdown & Resilience 51 COVID-19 Constitution-making in Chile 52 Jorge CONTESSE The Consequences of the Change of Political Positioning of the Brazilian Government 56 on Facing the Covid-19 Pandemic: A Breakdown of Democracy Tatiana CARDOSO SQUEFF
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