I·CONnect-Clough Center

2019 Global Review of Constitutional

Richard Albert, David Landau, Pietro Faraguna and Simon Drugda Editors © 2020 I•CONnect Electronically published by I•CONnect and the Clough Center for the Study of Constitutional Democracy at Boston College. www.iconnectblog.com | www.bc.edu/cloughcenter

ISBN: 978-0-692-15916-3 Table of Contents

4 INTRODUCTION 5 A Renewed Partnership in Support of Constitutional Democracy 6 Year Four of the Global Review

8 COUNTRY REPORTS 8 Albania 124 France 13 Argentina 129 Gambia 18 Australia 134 Georgia 23 Austria 139 Germany 28 Bangladesh 144 Ghana 33 Belgium 147 Greece 38 Bosnia and Herzegovnia 152 Greenland 41 Brazil 157 Guatemala 46 Bulgaria 162 Hong Kong 51 Canada 167 Hungary 56 Cape Verde 172 India 62 Chile 178 Indonesia 67 Colombia 183 Iran 72 Costa Rica 188 Ireland 77 Croatia 193 Israel 82 Cyprus 198 Italy 87 Czech Republic 203 Kazakhstan 92 Denmark 208 Kenya 97 Dominican Republic 214 Luxembourg 102 Ecuador 219 Malaysia 107 Egypt 224 Mexico 112 Estonia 229 Montenegro 118 Finland 234 Nepal

2019 Global Review of Constitutional Law | 1 239 New Zealand 310 South Africa 244 Nigeria 315 South Korea 249 North Macedonia 320 Spain 254 Norway 325 Sri Lanka 259 Palestine 330 Sweden 264 Peru 333 268 Poland 338 Taiwan 273 Portugal 344 Thailand 278 Romania 349 The Netherlands 284 Russia 354 Tunisia 288 Serbia 358 Turkey 293 Singapore 363 United Kingdom 300 Slovakia 368 Venezuela 305 Slovenia 372 SUMMARY

2 | I•CONnect-Clough Center Switzerland

Johannes Reich, Professor of Public Law, Environmental Law, and Energy Law, Institute of Public International Law and Comparative Constitutional Law, University of Zurich

I. INTRODUCTION: FOREIGN met some of the demands by amending the Federal Statute on Spatial Planning in 2012. POLICY AND DIRECT DEMOCRACY In small and open economies like Switzer- land, referenda on international treaties may, The Swiss Federal Constitution of 18 April in both political and legal terms, rise to the 1 1999 (Swiss Fed. Const.) is a ‘popular con- same importance as referenda on far-reach- SWITZERLAND 2 stitution’. Formally, it ranks amongst the ing constitutional amendments. This is sup- most rigid given the considerable hurdles ported by empirical evidence according to 3 amendments must clear. Not only are con- which voter turnout tends to be significantly stitutional amendments subject to a referen- higher in referenda on foreign policy than dum but require a double majority of both on domestic issues.7 Unlike all of its neigh- the voters nationwide and the 26 constitu- bours, Switzerland is neither a member of 4 ent states (Cantons) to be approved. The the European Union (EU) nor the European result of the popular vote in each Canton Economy Area. The country is nonetheless 5 determines its respective vote. Constitution- closely linked with the EU by a densely knit al amendments are nevertheless frequent. network of bilateral treaties allowing, among Swiss citizens are usually called upon four other things, for free movement of persons.8 times a year to vote on two to four referenda Coupling the EU’s dynamic acquis commu- regarding constitutional amendments, inter- nautaire, including secondary legislation national treaties, or federal statutes. In 2019, and decisions by the European Court of Jus- however, the voters and the Cantons failed tice, with static treaties under international to approve any constitutional amendment. law, however, creates inevitable tensions. On 10 February 2019, they rejected a pop- Such friction resurfaced with regard to the ular initiative against urban sprawl aimed at EU’s ‘Schengen Agreement’, which largely mitigating the deprivation of cultivated land abolished internal border checks within the by barring the Cantons from creating new European ‘Schengen Area’,9 of which Swit- residential zones.6 Federal Parliament had

1 Swiss Federal Constitution, 18 April 1999, Classified Compilation of Swiss Federal Law (SR) No. 101; official titles are in German, French, and Italian. Available at: https://www.admin.ch/opc/en/classified-compila- tion/19995395/index.html (non-official English translation). 2 Johannes Reich, ‘Switzerland: The State of Liberal Democracy’, in Richard Albert et al. (eds),2017 Global Review of Constitutional Law (I•CONnect & Clough Center 2018) 280, 280. 3 Astrid Lorenz, ‘How to Measure Constitutional Rigidity’ 2005 (17), Journal of Theoretical Politics 339, 359. 4 Swiss Fed. Const. (note 1), article 140 section 1a. 5 Swiss Fed. Const. (note 1), article 142 section 3. 6 ‘Popular Initiative Against Urban Sprawl’. Vote of 10 February 2019. Available at: https://www.bk.admin.ch/ ch/f/pore/va/20190210/index.html. 7 For empirical evidence see, e.g., Lionel Marquis and Pascal Sciarini ‘Opinion formation in foreign policy: the Swiss experience’ (1999) 18 Electoral Studies 453, 458. 8 See ‘Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons’ [21 June 1999], O J L 114, 30/04/2002, 6-72. Available in French at: https://www.admin.ch/opc/fr/classified-compilation/19994648/index.html.

2019 Global Review of Constitutional Law | 333 zerland has been part since 2008 based on viceman’ off duty.15 Despite these persistent Council and the Council of States, which its ‘Schengen Association Agreement’.10 The yet slowly fading traditions, the voters re- taken together are called Federal Assem- latter committed Switzerland to adopt the jected the against the adoption bly,17 are, unlike the chambers of the U.S. ‘Schengen acquis’11, and a failure to comply of the Schengen acquis and thus allowed for Congress, equal and have identical powers.18 would lead to the termination of the trea- continued membership of Switzerland in the The National Council consists of 200 repre- ty by default.12 Each national referendum Schengen Area. sentatives of the People.19 They are elected launched against the adoption of the devel- directly by the voters according to a system oping Schengen acquis therefore amounts II. MAJOR CONSTITUTIONAL of proportional representation for a term of 20 to a flirtation with terminating Switzerland’sDEVELOPMENTS: GENERAL four years. Proportional representation is, membership of the ‘Schengen Area’ alto- however, severely distorted by the fact that gether. This would not only lead to reintro- ELECTION OF THE SWISS each of the 26 Cantons forms a constituency duced checks at the Swiss border but put FEDERAL PARLIAMENT (electoral district).21 The seats of each Can- Switzerland’s participation with the EU’s ton are allocated according to their perma- ‘Dublin Regime’, determining which coun- 1. Bicameral Swiss Federal Parliament: nent resident population.22 The authority to try bears the responsibility to examine an ap- Constitutional Framework adjust the allocation of seats based on the plication for asylum, in jeopardy.13 most recent census is delegated to the fed- On 20 October 2019, Swiss voters were eral executive branch (Federal Council).23 In January 2019, a referendum was launched called upon to elect the Federal Parliament. Voters domiciled in the Canton of Zurich, for against adopting a further development of When the first Swiss Federal Constitution of instance, were therefore entitled to elect 35 the Schengen acquis on control of the acqui- 12 September 1848 was drafted, transform- representatives in 2019, whereas the voters sition and possession of weapons. In Swit- ing the former confederacy into a federal residing in one of the six smallest Cantons zerland, where the Constitution provides for state, the ‘United States Congress served as could each elect a sole representative only.24 general conscription for all male Swiss citi- a blueprint for Switzerland’s bicameral par- The Council of States, in turn, consists of zen of full age,14 individual ownership of a liamentary system’.16 The bicameral Swiss 46 members.25 Each Canton elects two rep- firearm and full membership of the citizenry Federal Parliament consists of the National resentatives, bar those six Cantons that have been emblematically linked for centu- Council and the Council of States, the former emerged from partition of a single Canton ries. The Federal Constitution of 1874, in resembling the United States House of Rep- into two between the Late Middle Ages and force until 1999, even stated, that the ‘fire- resentatives, the latter emulating the United the 19th century. These Cantons each elect arm shall … remain in the hands of the ser- States Senate. Both houses, the National one representative to the Council of States

9 See ‘Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders’ [14 June 1985], O J L 239, 22/09/2000, 13-18. 10 See ‘Agreement between the European Union, the European Community and the Swiss Confederation on the Swiss Confederation’s association with the implemen- tation, application and development of the Schengen acquis’ [26 October 2004], O J L 53, 27/02/2008, 52-79. Available in French at: https://www.admin.ch/opc/fr/ classified-compilation/20042363/index.html. 11 See M Oesch, Switzerland and the European Union (Nomos & Dike, 2018) 42-3, 103-10. 12 See ‘Schengen Association Agreement’ (note 10), article 7 section 4. 13 See ‘Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons’ [21 June 1999], O J L 114, 30/04/2002, 6-72. Available in French at: https://www.admin.ch/opc/fr/classified-compilation/19994648/index.html. 14 Swiss Fed. Const. (note 1), article 59 section 1. 15 Swiss Federal Constitution, 29 May 1874, in force until 31 December 1999, article 18 section 3. 16 Johannes Reich ‘The Americanization of Swiss Legal Culture [Book Review]’ (2018), 66 American Journal of 723, 725. 17 Swiss Fed. Const. (note 1), article 148. 18 Swiss Fed. Const. (note 1), article 148 section 2. 19 Swiss Fed. Const. (note 1), article 149 section 1. 20 Swiss Fed. Const. (note 1), article 149 section 2. 21 See Swiss Fed. Const. (note 1), article 149 section 3. 22 Federal Act on Political Rights, 17 December 1976, article 16 section 2; SR (see note 1) 161.1; official titles are in German, French, and Italian. Available at: https:// www.admin.ch/opc/en/classified-compilation/19760323/index.html (unofficial English translation). 23 See Federal Act on Political Rights (note 22), article 16 section 2 and Decree on Political Rights, 24 May 1974, article 6a; SR (see note 1) 161.1; official titles are in German, French, and Italian. Available at: https://www.admin.ch/opc/de/classified-compilation/19780105/index.html. 24 Decree on the Allocation of Seats regarding the General Election of the National Council, 30 August 2017; official titles are in German, French, and Italian. Available at: https://www.admin.ch/opc/fr/official-compilation/2017/4259.pdf. 25 Swiss Fed. Const. (note 1), article 150 section 1.

334 | I•CONnect-Clough Center only.26 It is for the Cantons to determine the the National Council32 – the most significant cil and the Council of States in a joint meet- rules governing the elections regarding the increase of any party since proportional rep- ing (‘United Federal Assembly’) for a term Council of States.27 All of the Cantons elect resentation had been introduced by a popular of four years after each general election of their representatives directly by the people initiative in 1918. The Green Liberal Party the National Council.34 The right of 50,000 for a term of four years, all but two Cantons (GLP) increased its share of the vote by 3.2 citizens eligible to vote to launch a referen- by majority voting.28 percent and secured nine additional seats. dum against any federal statute decided by All of the remaining parties stagnated or suf- Parliament provides for incentives to strive 2. Climate Change: Environmental and fered defeats: The right-wing ’s for a broad consensus at an early stage of Political Impacts Party (SVP) lost 12 mandates, albeit hold- legislative proceedings even before the draft ing on to its position achieved in 1999 as the bill is put on the agenda of Parliament. As Global warming has had a profound and vis- most influential political group in Parliament the Federal Council usually conducts prelim- ible impact on the Swiss landscape already: by a large margin, while the Social Demo- inary legislative proceedings,35 at least four Alpine glaciers have lost around 60 percent cratic Party’s (SP) share of the national vote different political parties have been repre- of their volume since 1850, the number of dropped to 16.8 percent – the lowest since the sented in the Federal Council continuously days with snowfall has halved since 1970 at party came into being in the late 19th centu- since the so-called ‘magic formula’, a polit- altitudes below 800 metres above sea level, ry. Both the centre-right Democratic Liberal ical convention according to which all five heatwaves have doubled in both frequency Party (FDP) and the moderate-conservative parties with the largest share of the nation- and intensity since 1901, and near-surface air Christian Democratic Party (CVP) stagnat- al vote hold at least one seat in the Federal temperature has increased by 1.5 °C over the ed at historically low levels with 29 and 25 Council, has taken root in 1959 to enhance last 150 years, which is considerably more seats, respectively. Both of them, neverthe- the possibility to reach a broad political con- than the global average of 0.9 °C.29 Within a less, continue in their roles as the dominating sensus.36 According to this ‘epitome of Swiss period being shorter than today’s life expec- forces in the Council of States33 as a result of consociationalism’,37 the GPS would have tancy at birth, average temperatures are esti- majority voting in all but two Cantons, hold- qualified for a seat in the Federal Council. mated to rise up by a further 4 to 7 °C during ing 12 (FDP; – 1) and 13 (CVP; +/– 0) of the The unprecedented gains of the GPS in the the summer season.30 Such dramatic climatic 46 seats, respectively. The GPS jumped from general election failed to alter the composi- changes are most likely to have profound so- one to five mandates while the SP holds nine tion of the Federal Council, however, as Par- cietal and economic consequences even for (– 3) and the SVP six (+ 1) seats. liament reelected all of the incumbent Fed- Switzerland, being a highly developed and eral Councilors. The Federal Council thus land-locked country. They thus call for deci- 3. Composition of the Federal Executive furthermore consists of two members of the sive political action.31 Branch – Still ‘a Kind of Magic’? SVP, the FDP, and the SP and one member of the CVP; four of the members have German, Climate change consequentially was fea- The Federal Council, the executive branch two French, and one Italian as their native tured among the issues dominating the of the federal government, forms a singular- language.38 election campaigns. The Swiss Green Party ity in a comparative perspective: It consists (GPS) increased its share of the national vote of seven members with equal rights and by 6.1 percent, gaining 17 additional seats in powers and is elected by the National Coun- III. CONSTITUTIONAL CASES:

26 See Swiss Fed. Const. (note 1), article 150 section 2 27 See Swiss Fed. Const. (note 1), article 150 section 3. 28 See, inter alia, W Haller, The Swiss Constitution in a Comparative Context (2nd ed, Dike, 2016) 130-2. 29 National Centre for Climate Services [NCCS], Climate Scenarios for Switzerland (2018), 18 (available at: https://www.nccs.admin.ch/dam/nccs/en/dokumente/web- site/klima/CH2018_broschure.pdf.download.pdf/CH2018_broschure.pdf). 30 NCCS (note 29) 6-13. 31 See Johannes Reich, ‘Abwendung der Klimakatastrophe durch Gerichte?’ (2019), 120 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 413 (available at: https://www.ivr.uzh.ch/en/institutsmitglieder/reich/publikation.html). 32 Federal Statistical Office FSO,Élections fédérales 2019 (FSO, 2019) 9-12, 16 (https://www.bfs.admin.ch/bfsstatic/dam/assets/10907688/master). 33 Federal Statistical Office, ‘Élections au Conseil des États’ (https://www.bfs.admin.ch/bfs/fr/home/statistiques/politique/elections/conseil-etats.html). 34 Swiss Fed. Const. (note 1), article 175 sections 1-3 and article 177 section 1. 35 Government and Administration Organisation Act, 21 March 1997, article 7; SR (see note 1) 172.010; official titles are in German, French, and Italian. Available at: https://www.admin.ch/opc/en/classified-compilation/19970118/index.html (unofficial English translation). 36 Johannes Reich, ‘An Interactional Model of Direct Democracy – Lessons from the Swiss Experience’ (2008), 12-4, 17-8 (https://ssrn.com/abstract=1154019). 37 Adrian Vatter, ‘Switzerland on the Road from a Consociational to a Centrifugal Democracy?’ (2016), 22Swiss Political Science Review 59, 71. 38 On the legal relevance of multilingualism in Switzerland, see Johannes Reich, ‘Auslegung mehrsprachigen Rechts unter den Bedingungen der Polyglossie in der Schweiz’ in Frank Schorkopf and Christian Starck (eds.), Rechtsvergleichung – Sprache –Rechtsdogmatik (Nomos, 2019) 145-173.

2019 Global Review of Constitutional Law | 335 JUDICIALIZATION OF POLITICS, In a decision of 2011,44 the Federal Court held ballot as a consequence. ISLAMIC HEADSCARVES, AND that despite the official information booklet’s character as ‘an act of the Federal Council’, Whereas the Federal Court, with its decision HOMESCHOOLING the Court would still scrutinize the ‘general of 10 April 2019, strengthened the integrity state of information prevailing at the time of of the process of direct democracy at the fed- 1. First-ever Judicial Nullification of a Fed- a popular vote’.45 As the Federal Council’s eral level, both the lack of manageable stan- eral Ballot – a Judicialization of Politics? official information booklet plays a crucial dards to assess the ‘general state of informa- role in the decision-making process,46 this ef- tion prevailing at the time of a popular vote’ The Federal Constitution guarantees each fectively amounted to a circumvention of the and the circumvention of the constitutional citizen the right ‘to form an opinion and to constitutional restrictions on judicial review. limits imposed on judicial review with re- give genuine expression to his or her will’ in gard to ‘acts of the Federal Council’ amount particular with regard to their political rights Drawing on the aforementioned case law, the to a constitutionally unwarranted judicial- 39 (elections and ballots). The Federal Court, Federal Court, on 10 April 2019,47 nullified ization of federal politics. Switzerland’s , thus consis- a federal ballot for the first time in Swit- tently held that no result of a ballot shall be zerland’s history. The Court’s judgment an- 2. Prohibition of ‘Visible Religious Symbols’ approved failing to reflect ‘the genuine and nulled the federal ballot of 28 February 2016 in Court Hearings 40 undistorted will of the voters’. Accord- on a popular initiative seeking to abolish ingly, the Court has regularly nullified suchwhat is commonly referred to as ‘the penalty Whereas the Islamic headscarf has featured ballots at the levels of the Cantons and the on marriage’. The term describes the phe- frequently in the case law of Switzerland’s municipalities in which public authorities nomenon according to which the tax due for highest court, all previous decisions have had interfered by means of unbalanced infor- married couples and homosexual couples liv- so far related to public schools. In 1997, the mation or distorting propaganda. Pursuant to ing in a registered partnership is determined Court held a prohibition for teachers at pub- an explicit constitutional provision, howev- based on the total income and wealth of both lic schools to wear Islamic headscarves to be er, acts of both the Federal Assembly and the individuals involved. Due to progressive tax constitutional both in view of the constitu- Federal Council remain outside of the scope rates, the tax levied on individuals joint in tional commitment of Geneva, the Canton in 41 of judicial review. marriage or registered partnership tend to question, to a strict separation of religion and be higher than the tax imposed on two sin- state (laïcité) and the teachers’ role repre- In the run-up to each federal ballot, ballot gle persons in the same situation, provided senting the state and thus being bound to re- papers are mailed to voters together with an both individuals gain income. In its official main neutral on religious matters.48 In 2015, official information booklet.All information information booklet, the Federal Council the Court ruled that banning ‘headgear’ in contained therein must comply with ‘the estimated that 80,000 couples would be af- general and headscarves in particular for stu- principles of completeness, objectivity, trans- fected by the ‘penalty on marriage’, only to dents would unconstitutionally infringe on 42 parency, and proportionality’. The official correct this figure to 454,000 two years lat- their freedom of religion.49 information booklet is an ‘act of the Federal er. The Federal Court not only deemed the Council’, as it is responsible for providing previous estimate to be ‘grossly misleading’ On 11 March 2019, the Federal Court held for the respective ‘short’ and ‘objective ex- but assumed that it significantly impacted a mere ordinance issued by the Council of 43 planation’ of the referenda and popular ini- the ‘general state of information prevailing Justice of the Canton of Basel-City commit- tiatives to be decided upon at the ballot box. at the time of a popular vote’. It nullifiedthe ting all court officials (judges and clerks) to

39 Swiss Fed. Const. (note 1), article 34. 40 See, e.g., Swiss Federal Court, BGer., decision BGE 140 I 394 section 8.2 (26 September 2014). Available at: www.bger.ch. 41 Swiss Fed. Const. (note 1), article 189 section 4. 42 Federal Act on Political Rights (note 22), article 10a section 2. 43 Federal Act on Political Rights (note 22), article 11 section 1. 44 Swiss Federal Court, BGer., decision BGE 138 I 61 (20 December 2011). Available at: www.bger.ch. 45 See Swiss Federal Court, BGE 145 I 207 (10 April 2019) at section 1.5 (‘…l’état d’information global prévalant au moment d’une votation populaire…’). Available at: www.bger.ch. 46 See Alexander H Trechsel and Pascal Sciarini, ‘Direct democracy in Switzerland: Do elites matter?’ (1998), 33European Journal of Political Research 99, 113-5 and, for a contextual assessment, Hanspeter Kriesi, Direct democratic choice: The Swiss experience (Lexington, 2005) 230-9. 47 BGE 145 I 207 (note 45). 48 Swiss Federal Court, BGer., decision BGE 123 I 296 (12 November 1997). Available at: www.bger.ch. 49 Swiss Federal Court, BGer., decision BGE 142 I 49 (11 December 2015). Available at: www.bger.ch; for a critical assessment see Johannes Reich, ‘BGE 142 I 49’ (2016), 117 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 369 (available at: https://www.ivr.uzh.ch/en/institutsmitglieder/reich/publikation.html); see also Swiss Federal Court, BGer., decision 1C_76/2018 (20 August 2019). Available at: www.bger.ch.

336 | I•CONnect-Clough Center abstain from ‘wearing visible religious sym- matter to be regulated by the Cantons rath- IV. LOOKING AHEAD: POPULAR bols’ during both public pronouncements of er than the Federation.52 As a result, 26 dif- INITIATIVES AS ‘SOCIETAL judgments and court hearings with the par- ferent regulations apply to home-schooling ties or the public being present to be constitu- across Switzerland.53 Despite such varying SEISMOGRAPHS’ tional.50 The Court found that the prohibition standards, every child has a constitutional would pursue a legitimate public interest by right to adequate primary education being Popular initiatives, which require only seeking to prevent parties from being giv- free of charge.54 Primary ‘education’ (not to 100,000 signatures of Swiss citizens to be 60 en the impression that court officials wouldbe confused with ‘schooling’) is mandatory launched, often amount to ‘societal seis- be ‘guided by their religious convictions in for all children living in Switzerland on con- mographs’, putting issues on the political their decision-making process’. The Court stitutional grounds.55 The Cantons are, at the agenda that have been neglected by the po- furthermore stated that the regulation would same time, under a constitutional obligation litical elites. The popular initiative ‘for more not severely restrict the freedom of religion to provide for schools allowing for such ad- affordable housing’, to be decided on 9 Feb- of court officials as it would only apply to- cir equate primary education free of charge.56 ruary 2020, sheds light on high rents in some cumstances being strictly limited both in time Children furthermore have a constitutional Swiss cities, whereas the popular initiative and subject matter, leaving ‘the everyday life’ right to ‘special protection of their integrity ‘for moderate immigration’ to be decided on of court officials mostly unaffected. Against and to the encouragement of their develop- 17 May 2020 amounts to yet another flirta- this backdrop, the prohibition would, accord- ment’ (best interest of the child).57 tion with Switzerland turning its back on the ing to the Court, not only be proportionate but EU altogether. The initiative seeks to end the rest on a sufficient legal basis. This is uncon- In its first leading case on the subject, the free movement of people within EU coun- vincing as firmly held and religiously rooted Federal Court held on 22 August 2019,58 that tries. Continually evaluating the inevitable beliefs tend to form part of an individual’s the right to respect for one’s private and fam- trade-offs between self-governance, democ- self-conception. An obligation to visually dis- ily life enshrined in both the Federal Consti- racy, and economic integration will, there- associate oneself from one’s religious convic- tution and European Convention on Human fore, remain a defining feature of Switzer- tions when appearing in public even in one’s Rights (ECHR) would not grant an individu- land’s direct democracy in the year to come. professional life thus amounts to a severe re- al right to home-school. Regulations enacted striction of freedom of religion, asking for a by the Cantons severely restricting or even V. FURTHER READING proper legal basis. prohibiting home-schooling are thus, accord- ing to the Court, in line with both the Federal Oliver Diggelmann, Maya Hertig Randall, 3. No constitutional right to home-school Constitution and the ECHR as long as the Benjamin Schindler (eds.), Verfassungsrecht schools of the respective Cantons provide for der Schweiz – Droit constitutionnel suisse ‘Home-schooling’ – to teach one’s child adequate primary education free of charge. (three volumes, Schulthess, 2020) school subjects at home – remains a rare Notably, the Court made no mention of the phenomenon in Switzerland. In 2012, constitutional clause protecting the best in- around 500 children were home-schooled, terest of the child. It thus turned a blind eye representing 0.055 percent of all children to the possibility that home-schooling might, at compulsory school age.51 Even though as an exception and for a limited time only, these numbers may have risen consider- indeed be in a child’s best interest.59 ably in the meantime, they are most likely to have lingered well below the threshold of 1 percent. School education is a subject

50 Swiss Federal Court, BGer., decision 2C_546/2018 (11 March 2019). Available at: www.bger.ch. 51 Johannes Reich, ‘”Homeschooling” zwischen elterlichem Erziehungsrecht, staatlicher Schulpflicht und Kindeswohl’ (2012), 113 Schweizerisches Zentralblatt für Staats- und Verwaltungsrecht 567, 568, 607-9 (available at: https://www.ivr.uzh.ch/en/institutsmitglieder/reich/publikation.html). 52 Swiss Fed. Const. (note 1), article 19. 53 For an overview of these regulations, see Reich (note 51) 607-9. 54 Swiss Fed. Const. (note 1), article 19. 55 See Swiss Fed. Const. (note 1), article 62 section 2. 56 See Swiss Fed. Const. (note 1), article 62 section 2. 57 Swiss Fed. Const. (note 1), article 11 section 1; for a detailed analysis see Johannes Reich, ‘”Schutz der Kinder und Jugendlichen” als rechtsnormatives und expres- sives Verfassungsrecht’ (2012), 131(I) Zeitschrift für Schweizerisches Recht 363 (available at: https://www.ivr.uzh.ch/en/institutsmitglieder/reich/publikation.html). 58 Swiss Federal Court, BGer., decision 2C_1005/2018 (22 August 2019). Available at: www.bger.ch. 59 See Reich (note 51) 605. 60 Swiss Fed. Const. (note 1), article 139 section 1.

2019 Global Review of Constitutional Law | 337 SUMMARY

Albania Argentina Australia 2019 was characterized by a constitutional In an election year, the Supreme Court was Religious freedom dominated public con- conflict between the President and - Parlia not at the forefront of public discussion. sciousness in 2019 as the government ment leading up to the impeachment of the However, a handful of important and politi- consulted on and developed a Religious head of state. Because the opposition boy- cally charged decisions timidly evinced the Discrimination Bill to be introduced to cotted the local election, only a single can- emergence of a majority inclined to check Parliament in February 2020. If passed, the didate ran in most municipalities, winning the government and protect some rights. Bill will protect against religious discrimi- by default. The implementation of justice re- Political change and economic turbulence nation (and discrimination against atheists form slowly progressed throughout the year, may alter this. and agnostics) and establish a Freedom of affecting the renewal of justice institutions. Religion Commissioner.

372 | I•CONnect-Clough Center Austria its institutions have provided a reasonable doms, gender equality, and non-discrimina- In 2019, the Federal Government’s break- degree of horizontal accountability. tion between nationals and non-nationals; down after the “Ibiza scandal” ended a the protection of the environment; and the phase of bold legislative reforms that also Bulgaria relationships between constitutional law, on induced the Constitutional Court to exam- For Bulgaria, 2019 was marked by rising the one hand, and international investment ine several and repeal part of them. The tensions among the highest echelons of law and inter-American human rights law Federal Constitution proved to be a high- state power, particularly between the Presi- on the other. ly stabilizing factor during the breakdown dent and the government. Against this back- phase and following political events. ground, the most significant constitutional Costa Rica developments concerned the controversial Politicians’ growing dissatisfaction with Bangladesh appointment of a new chief prosecutor and the Constitutional Court’s exercise of its re- The Awami League commenced its third a long-overdue reform aimed at ending the view powers engendered a backlash in Con- consecutive term. The BNP, the real op- impunity of this office. gress that resulted in significant delays in position to the ruling party, joined the cur- the election of new magistrates and a highly rent parliament with just six seats after five Canada contentious debate over the fairness of the years. The larger Supreme Court mostly In June, the legislature of the province of procedures used to elect them to the coun- showed reluctance on civil rights. But its Québec made a rare use of the Canadian try’s apex court. activism in compensation and gender-based Charter’s ‘notwithstanding clause’ in pass- violence cases attracted appreciation. ing an act to prohibit public sector employ- Croatia ees ‘in a position of authority’ from wearing 2019 was marked by important decisions Belgium religious symbols at work. Four lawsuits of the Constitutional Court on the protec- Elections were held and resulted in an ardu- challenging the constitutionality of the act tion of the freedom of thought and expres- ous formation process of the federal govern- ensued. sion. The Court underlined that protecting ment. Moreover, an attempt to amend Arti- freedom of expression not only relates to cle 7bis of the Constitution in order to adopt Cape Verde non-offensive information and/or ideas but a “Special Climate Act” was unsuccessful, The year 2019 was especially marked by also ‘to those which are offensive, shock- yet the provision was again included in the an increase of constitutional complaints ing or disturbing’. This has implications for list of articles that can be amended. lodged with the Constitutional Court, and democratic dissent. subsequently to the continuous develop- Bosnia and Herzegovina ment of case law in the field of protectionCyprus The distribution of mandates after the elec- of accused persons in the criminal frame- 2019 was marked by a significant amend- tions in 2018 proved to be a contentious work and in other proceedings that led to ment of the Cypriot Constitution. It intro- issue in Bosnia and Herzegovina. Despite the application of sanctions. duced the notion of ‘non-taken parliamen- the decisions of the Constitutional Court, tary seats’ in an attempt to fill the 56th seat political stakeholders held that impugnable Chile that remained vacant following the 2016 constitutional provisions were still in effect. The constitutional reform of December 24, parliamentary elections due to the impasse This put enormous pressure on the Election which was the result of a bipartisan agree- created by the non-affirmation of one of the Commission of the country. ment that tried to offer a political way out of elected candidates. a crisis, established the steps of a Constitu- Brazil tion-making process that, if successful, will Czech Republic Brazil under President Bolsonaro, a populist generate a total constitutional replacement. In 2019, the Senate prepared a constitution- with an explicit authoritarian mindset, is cer- al charge against President Zeman, claim- tainly a threatening scenario for democracy. Colombia ing serious breaches of the Constitution. Interestingly enough, Brazil’s democracy, up The core 2019 constitutional developments However, it was rejected by the Chamber of to this point, has shown some resilience and concerned matters on limitations to free- Deputies, mostly thanks to the votes of PM

2019 Global Review of Constitutional Law | 373 Babiš’s party, ANO. Also, the investigation with and brought the so-called far right into also ruling for the first time on the digital of PM Babiš’s conflicts of interest contin- government. This led to a tense relationship right to be forgotten. In short, the Court ued on national and European levels. between the government and the president promoted the EU Charter of Fundamental and raised several constitutional issues. Rights to the constitutional standard of re- Denmark view when EU law is applicable. The new government strengthened the state Finland but was accused of arrogating judicial pow- The proposed legislation on civil and military Ghana er to its own hand through a new law aimed intelligence and on the oversight of intelli- The most important development in 2019 at revoking citizenship, while a large ma- gence gathering, the implementation of which emerged from the decision of the Supreme jority of MPs agreed to adopt an ambitious Section 10 of the Constitution of Finland on Court to uphold state resource expenditures climate law, expected to influence Danish the secrecy of confidential communications on one particular religion if they benefit so- politics for a decade. had been amended, was approved by the Par- ciety as a whole. As a legally secular, cul- liament and entered into force on 1 June 2019. turally multi-religious society, Ghana can Dominican Republic ill afford religious disaffection. Religious Through several decisions on political party France equality was guaranteed in the 1992 Consti- and electoral in 2019, the Constitution- In a period of intense social protest and tution to prevent that. al Court made key decisions regulating both claims for a renewal of democratic partici- the internal organization of political parties pation, the Constitutional Council ruled for Greece and the political competition between them. the first time on a joint Parliament- and cit- A toothless yet useful constitutional revi- The Court is now firmly placed at the center izen-initiated referendum. It also reviewed sion marked 2019. The Constitution had re- stage of Dominican politics. major bills relating to the right to protest mained formally unaltered throughout a cri- and a major reform of the judicial system. sis, first because of a mandatory time lapse Ecuador between revisions and then due to a lack of The transitory Council for Public Partici- Gambia consensus. Nine out of forty-nine proposed pation and Social Control dissolved and ap- 2019 saw The Gambia move from setting up amendments were made. All formal change pointed several public officials, and also gave key institutions such as the Constitutional is now frozen for many years. birth to a new Constitutional Court. While Review Commission (CRC); Truth, Rec- there have been crucial steps made towards a onciliation, and Reparations Commission Greenland stronger constitutional democracy, the fruits (TRRC); and National Human Rights Com- The most important constitutional devel- of this transition are still to be seen after a mission (NHRC) to actualising the key tran- opment was the unilateral decision to draft much-anticipated period of consolidation. sitional justice standards required to restore a subregional constitution for Greenland the rule of law and democracy to the country. in two stages: the first, to enter into force Egypt under the Danish constitutional framework; The most significant development in Georgia the second to take effect only when (or if) Egypt’s constitutional status in 2019 was This report provides a brief introduction to Greenland becomes independent. the constitutional amendments adopted in the constitutional system of Georgia, con- late April. Those amendments widened the stitutional amendments, civil protest, local Guatemala scope and level of the executive branch’s elections, media, and main challenges fac- 2019 was a year marked by the intervention power vis-à-vis other authorities, and gave ing the judiciary. It also provides an over- of the Constitutional Court in the election the military a new constitutional duty of view of landmark judgments of the Consti- and selection of the traditional powers of protecting the Constitution and democratic tutional Court in 2019 and developments the state: Executive, Congress and the Ju- pillars of the country. expected in 2020, including court vacan- diciary. However, this came at a cost. The cies, court cases, and other related events. year was also marked by strong backlash Estonia against the Constitutional Court. 2019 was marked by elections to the Esto- Germany nian Parliament. They had a decisive effect The federal Constitutional Court recalibrat- on the claims the Supreme Court had to deal ed its stance towards the European Union,

374 | I•CONnect-Clough Center Hong Kong Ireland Luxembourg Misjudgment of public opinion by the Hong 2019 saw the passage of legislation to es- The dominant theme in Luxembourg re- Kong and Chinese Governments contrib- tablish a Judicial Council. This had been mained the questions of whether and how uted to the mass civil unrest in 2019. The discussed for over two decades, with the the Constitution should be rewritten. This state’s hardline approach against the protes- senior judiciary becoming increasing- long-lasting discussion came to a sudden tors prompted further violence. The Hong ly vocal on the issue in recent years. The end in November 2019. The transformation Kong judiciary’s independence and credi- Council will have responsibility for judicial of the Constitution into a “living instru- bility were tested as disputes related to the conduct, disciplinary matters, training and ment,” however, continues to occupy all movement found their way to the courts. representation. institutions, notably the strengthened Con- stitutional Court. Hungary Israel Government influence on courts increased The most important developments in Israeli Malaysia in 2019. Although amending actors aban- constitutional law in 2019 were the politi- Securing meaningful reform in the post-tran- doned the idea of establishing a separate cal deadlock resulting in recurring general sition era remained the main challenge in Ma- administrative court system through the 8th elections and the unprecedented criminal laysia, given the formidable vested interests Amendment to the Fundamental Law, new indictment of a sitting Prime Minister, Ben- against it. Abortive attempts by the new gov- statutory provisions constrained judicial jamin Netanyahu, for bribery, fraud and ernment to amend the Federal Constitution power to interpret legal and constitutional breach of trust. These two combined to gen- and to ratify several international conventions rules. Institutional tensions in the entire ju- erate a constitutional crisis in Israel. emphasized the areas in which reform is need- dicial system increased. ed, as well as the challenges ahead. Italy India In 2019, the Italian Constitutional Court Mexico In 2019, the Indian state of Jammu and Kash- ruled in continuity with its most recent case The National Guard (a civil police institu- mir lost its constitutional status as a semi-au- law and strengthened its institutional role tion composed of members of the Federal, tonomous region and was brought under com- by coordinating the exercise of its powers Military, and Naval Police responsible for plete federal control. The absence of public and competences with both other constitu- guaranteeing public security) was intro- consultation contributed to widespread protests tional actors and supranational institutions. duced in the Constitution. The Constitution at the annulment of the historical guarantee was also amended to introduce the revoca- granted at its accession to the Indian union. Kazakhstan tion of the mandate as a popular consulta- 2019 was marked by the surprising volun- tion mechanism that will be applied to the Indonesia tary resignation of the country’s first Pres- President. In 2014, the Court issued a decision on ident, Nazarbayev, in the spring, and the the simultaneous general election. But the transfer of the presidential office to Toka- Montenegro Court has come under fire after around 400yev, former Senate Speaker, in the summer. The year was not marked by major constitu- polling station workers died in the 2019 The Constitutional Council of Kazakhstan tional developments but controversies and election. In this term, the Court has to de- upheld these developments. challenges to the autonomy and consistency cide on whether to nullify its decision or of the judicial authorities and their com- re-affirm the simultaneous election. Kenya mitment to the rule of law, particularly the The most important constitutional develop- power imbalance between the Constitution- Iran ment was something that has not happened al Court and the Supreme Court. The gas price hike regulations in November – yet. Namely, a debate about whether to 2019 via the Supreme Council for Econom- make major shifts, and whether by a refer- Nepal ic Coordination (SCEC) put the Constitu- endum, in the system of government, with The implementation and operationalisation tion on edge. They opened several fractures the purpose of creating one that is more in- of the 2015 Constitution remained the pri- between the latent conflicts in the Consti- clusive (especially of ethnic groups). mary constitutional focus. Federalisation tution, making constitutional dysfunctions persisted as a significant challenge. While more clearly and dramatically visible. the ineffective transfer of governmental

2019 Global Review of Constitutional Law | 375 responsibility to subnational governments Palestine change of parliamentary majority and to the spurred intergovernmental conflict and Palestinian President Mahmoud Abbas dis- change of Government. weakened the foundations for federalism, solved the Palestinian Legislative Council devolution appears to be conferring new but did not call for new elections as per the Russia forms of legitimacy on government. SCC ruling on the matter. He also replaced The Constitutional Court continued a trend the sitting High Judicial Council with a tem- of consistent political subordination that New Zealand porary one. This concentration of powers dates back to the entry into force of the cur- In response to the March 15 gun attack on makes it harder to counteract his power/s and rent Constitution. It has never been an inde- two mosques by a lone far-right extremist, ensure accountability in government. pendent actor and does not deal with polit- which murdered 51 people and injured an- ically sensitive issues. However, it plays a other 49, New Zealand had to reconsider a Peru significant role in the protection of social and swathe of laws relating to gun ownership In 2019, Peru managed to overcome a tough economic rights. and terrorist activity. fight between the legislative and the execu- tive, which culminated in the closure of Con- Serbia Nigeria gress, by constitutional means. Since Peru In June 2019, the Committee on Constitu- Nigeria’s democratic trajectory seemed to has a history of overcoming political crises tional and Legislative Issues of the National veer off course in 2019. Pre- and post-elec- by coup d´états, this cannot be overstated. Assembly accepted the Government’s ini- tion violence and the threat of violence and tiative for constitutional changes. However, electoral manipulation marred the 2019 Poland due to the forthcoming parliamentary elec- general elections. Also, horizontal account- In 2019, the rule of law further deteriorated tions in spring 2020, it is upon the new leg- ability mechanisms appeared to weaken in Poland, including the undermining of the islature to continue and, most likely, finish during the period. A course correction will judiciary’s independence. This was possible the procedure. be required in the coming years. by applying legal measures that were intro- duced in previous years. In December, the Singapore North Macedonia first chamber of Parliament passed a law- al Besides the usual constitutional issues, it was Combatting impunity in high-level corrup- lowing the extensive punishment of judges. the enactment of the Protection from Online tion cases remained a challenge in 2019 as Falsehoods and Manipulation Act that had citizens still awaited the prosecution and Portugal the strongest constitutional impact in 2019, punishment of high-level officials involved2019 was a year marked by elections and, and beyond. By regulating online false- in wire-tapping scandals from 2015. Fight- subsequently, parliamentary fragmentation, hoods, the law attempts to balance freedom ing corruption is a precondition for the governmental change, and social contestation of speech against the integrity of democracy country’s EU integration, especially after (with the summoning of several strikes and and other public interests. its historic name change this year. manifestations by dissatisfied professional sectors). The Constitutional Court dealt with Slovakia Norway issues such as surrogacy, citizenship, data In a historic ruling, the Slovak Constitutional Following unlawful administration of social protection, and paternity proceedings, revisit- Court held that the Constitution contains an welfare benefits, citizens were wrongfully ing some of its previous jurisprudence. implicit material core that cannot be changed convicted. The secret police unlawfully col- through the ordinary amendment process. If lected airline passenger data. Central cases Romania an amendment violates a core provision, it concerned retention of DNA profiles, the The most important development of 2019, will be struck down. The Court’s composition Norway-EFTA Court relationship, and chil- besides the Constitutional Court’s involve- changed dramatically in 2019, possibly having dren’s right to privacy in social media. In ment in the political and judicial spheres, implications for the endurance of this ruling. the ECtHR, cases about the Norwegian child was a significant shift in the options of the welfare system dominated. electorate, manifested in the outcome of Slovenia three major popular consultations. This led In 2019, the Constitutional Court ren- to an unexpected but rather conjunctural dered several precedential and important decisions, strengthening the protection of

376 | I•CONnect-Clough Center human rights and fundamental freedoms. riod of democratic regression has followed. en the parliamentary system. Also, a tempo- While the Court continues to be regarded rary parliamentary committee on the digital as the most reliable rule-of-law institution Sweden future was established; the Supreme Court in Slovenia, its stature was diminished in Three constitutional issues dominated the delivered the Urgenda climate change judg- 2019, in particular due to its growing inef- Swedish constitutional law debate in 2019: ment; and there were evolutions regarding fectiveness. the relationship between the Council on militant democracy as a response to criminal Legislation and the Government, the crimi- activities of outlaw motorcycle gangs. South Africa nalization of joining and supporting terror- The proposed amendment of section 25 of ist organizations and the outlawing of racist Tunisia the Constitution, intended to allow the gov- organizations, and lastly, the constitutional Eight years after its revolution, Tunisia ernment to seize property without compen- enhancement of the independence of the ju- made a milestone step toward the creation sation, continued to be an ongoing project diciary. of sustainable democracy despite political reflecting accelerated creeping socialism and challenges. The North African resource-poor a concomitant decline of constitutionalism Switzerland country managed to complete its third set amidst ongoing revelations of corruption The Green Party won the general election of elections and, despite imperfections, was and attempts to remedy its consequences. to the Federal Parliament but failed to get hailed as the only democracy in the region. Meanwhile, lively constitutional litigation a seat in the executive branch. The Federal continued. Court nullified a federal ballot for the first Turkey time in history and held that a prohibition A comprehensive implementation of the new South Korea barring court officials from wearing - ‘visi presidential system in Turkey perpetuated The South Korean Constitutional Court de- ble religious symbols’ in court hearings was executive dominance, eradicated key checks cided on the nonconformity to the Constitu- constitutional. and balances, and pushed the country toward tion of the abortion ban; the Moon adminis- the brink of becoming a constitutional autoc- tration was criticized for returning two North Taiwan racy. Under these worrying circumstances, Korean fishermen demanding asylum to the Taiwan’s constitutional development in 2019 the Turkish Constitutional Court struggled to North; and the scandal surrounding Kuk was reactive in character, with the legislative give consistent judgments. Cho, the former Minister of Justice, deeply arena as the main theater. In reaction to the disappointed the Korean people. disappointing referenda on the legalization United Kingdom of same-sex marriage in 2018, laws were In 2019, the battle between the Government Spain passed reworking the relationship between and the House of Commons concerning Judgment 89/2019 reviewed the constitu- and elections while finally- re Brexit intensified. In September 2019, two tionality of the process of activation and alizing marriage equality in law, but without weeks after the prorogation of Parliament, application of the instrument of state coer- a name. the Supreme Court unanimously ruled the cion on autonomous communities in case of prorogation ‘unlawful, null, and of no ef- serious non-compliance with the constitu- Thailand fect’, reaffirming the need for judicial and tional system. The article was applied for For the first time in Thailand’s history, the parliamentary scrutiny of government acts. the first time by the government followingmilitary junta successfully became a dem- the events in Catalonia in autumn 2017. ocratically elected government, regardless Venezuela of the democratic quality of the Constitu- In 2019, Venezuela experienced a major con- Sri Lanka tion. The regime remains as repressive as stitutional standoff. Following the fraudulent The 2019 presidential election ended the ever. However, this arrangement provided a May 2018 presidential election, President government elected in 2015 to strengthen flimsy disguise, posing a challenge to those Juan Guaidó of the opposition-led legislature democracy and good governance through wishing to question the regime’s legitimacy. acted as Interim President to achieve a dem- constitutional reform. With the country turn- ocratic transition via elections, yet Nicolás ing to strong leadership, the new President, The Netherlands Maduro clung to power supported by the Gotabhaya Rajapaksa, offered an alternative The government responded to the State Supreme Tribunal and National Constituent vision of nationalist authoritarianism. A pe- Commission’s recommendations to strength- Assembly.

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