I·CONnect-Clough Center 2018 Global Review of Constitutional Law Drugda, Simon; Albert, Richard; Landau, David; Faraguna, Pietro Publication date: 2019 Document version Publisher's PDF, also known as Version of record Document license: Unspecified Citation for published version (APA): Drugda, S., Albert, R., Landau, D., & Faraguna, P. (Eds.) (2019). I·CONnect-Clough Center 2018 Global Review of Constitutional Law. Clough Center for the Study of Constitutional Democracy at Boston College. Download date: 27. sep.. 2021 I·CONnect-Clough Center 2018 Global Review of Constitutional Law Richard Albert, David Landau, Pietro Faraguna and Simon Drugda Editors © 2019 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 The Global Review Turns Three 7 COUNTRY REPORTS 9 Argentina 120 Greece 13 Austria 125 Guatemala 18 Bangladesh 131 Hong Kong 23 Belgium 138 Hungary 28 Boznia and Herzegovnia 143 India 33 Brazil 149 Indonesia 37 Bulgaria 154 Iran 42 Cameroon 158 Ireland 47 Cape Verde 163 Israel 52 Chile 167 Italy 58 Colombia 172 Japan 63 Commonwealth Caribbean 177 Kenya 68 Croatia 182 Latvia 74 Cyprus 188 Liechtenstein 79 Czech Republic 193 Malaysia 84 Denmark 199 Mexico 87 Ecuador 204 Moldova 92 Egypt 209 New Zealand 97 Finland 214 Nigeria 102 France 219 Norway 107 Gambia 224 Palestine 112 Georgia 229 Peru 117 Ghana 234 Philippines 2018 Global Review of Constitutional Law | 1 238 Poland 289 Sri Lanka 243 Portugal 294 Sweden 248 Romania 298 Switzerland 253 Russia 303 Taiwan 258 Serbia 309 Thailand 263 Singapore 314 Turkey 269 Slovakia 319 Ukraine 274 South Africa 325 United Kingdom 279 South Korea 331 Vietnam 285 Spain 336 SUMMARY 2 | I•CONnect-Clough Center 2018 Global Review of Constitutional Law | 3 INTRODUCTION 4 | I•CONnect-Clough Center A RENEWED PARTNERSHIP IN SUPPORT OF CONSTITUTIONAL DEMOCRACY Vlad Perju Director, Clough Center for the Study of Constitutional Democracy Professor, Boston College Law School The Clough Center for the Study of Constitutional Democracy at Boston College is delighted to join, for the second year, I-CONnect in making this unique resource available to scholars and practitioners of constitutional law and policy around the world. The first - 2016 - edition of the Global Review of Constitutional Law, to which the Clough Center was a proud partner, received the outstanding reception it deserved as it quickly established itself as an indispensable resource for the world community. The 2017 edition, with its expanded number of jurisdictions, will undoubtedly solidify the reputation of the Global Review. The Clough Center for the Study of Constitutional Democracy aims to offer a platform that meets, in depth and scope, the urgency of the ongoing challenges to constitutional democracy. Each year, we welcome to Boston College some of the world’s leading jurists, historians, political scientists, philosophers and social theorists to participate in our programs and initiatives. The Center also welcomes visiting scholars from around the world, and I use this opportunity to encourage interested scholars to contact us. More information about the Center’s activities, including free access to the Clough Archive, is available at http://www.bc.edu/centers/cloughcenter.html. The Clough Center is deeply grateful to all the contributors to this year’s Global Review, and to its editors. Particular thanks go to Professor Richard Albert, a trusted friend and partner of the Clough Center, for his vision and initiative in turning the Global Review into reality. 2018 Global Review of Constitutional Law | 5 THE GLOBAL REVIEW TURNS THREE Richard Albert and David Landau Founding Co-Editors of I·CONnect and Co-Editors of the Global Review Pietro Faraguna and Simon Drugda Co-Editors of the Global Review This year marks the third edition of the I·CONnect-Clough Center Global Review of Constitutional Law. First published in 2017 to review the constitutional law developments in the world in the year 2016, this edition reviews the constitutional law developments in the world in the year 2018. )URPMXULVGLFWLRQVLQRXU¿UVW\HDUDQGODVW\HDUWKLV\HDUZHDUHSOHDVHGWRIHDWXUHMXULVGLFWLRQV:HFRQWLQXH WRJURZVORZO\EXWVWHDGLO\:LWKWKHKHOSRIRXUFXUUHQWURVWHURIFRQWULEXWRUVDQGZLWKQHZLQWHUHVWIURPRXUUHDGHUV and others, we hope to continue expanding our coverage of the world. The purpose of the Global Review has remained unchanged since its founding. It is to offer readers systemic knowledge that has previously been limited mainly to local networks rather than a broader readership. By making this information DYDLODEOHWRWKHODUJHU¿HOGRISXEOLFODZLQDQHDVLO\GLJHVWLEOHIRUPDWZHDLPWRLQFUHDVHWKHEDVHRINQRZOHGJH upon which scholars and judges can draw. Our ambition is to make our vast world smaller, more familiar, and more accessible. :HDUHJUDWHIXOWRRXUDXWKRUVIRUSUHSDULQJWKHLUULFKLQVLJKWIXODQGLQIRUPDWLYHMXULVGLFWLRQUHSRUWV:HDOVRWKDQN the leadership team at the International Journal of Constitutional Law²*UiLQQHGH%~UFDDQG-RVHSK:HLOHU&R Editors-in-Chief, as well as Sergio Verdugo, Associate Editor, for publishing a few contributions from this year’s Global Review focused on Latin America to coincide with the 2019 Annual Conference of the International Society of 3XEOLFKHOGRQ-XO\LQ6DQWLDJR&KLOH:HDOVRZLVKWRUHFRJQL]HWKHOHDGHUVRIWKH&HQWUDODQG(DVWHUQ(XURSHDQ Chapter of the International Society of Public Law for hosting a regional workshop this past year for Global Review FRQWULEXWRUV:HKRSHWKHLULQLWLDWLYHLQVSLUHVRWKHUVWRKRVWVLPLODUSURJUDPVLQWKHLURZQSDUWRIWKHZRUOG:HJLYH thanks as well to Gaurie Pandey at the Center for Centers at Boston College for her help once again in designing this beautiful volume. :HUHVHUYHRXUELJJHVWWKDQNVIRU3URIHVVRU9ODG3HUMX3URIHVVRURI/DZDQG'LUHFWRURIWKH&ORXJK&HQWHUIRUWKH Study of Constitutional Democracy at Boston College. Professor Perju continues to inspire us with his vision for the Center, which he has transformed into a leading site in the world for discussion and debate on constitutionalism. A OHDUQHGVFKRODURIWKH¿HOGDUHVSHFWHGWHDFKHUDQGDSDVVLRQDWHGHIHQGHURIGHPRFUDF\KHKDVRXUGHHSHVWJUDWLWXGH :H LQYLWH LQWHUHVWHG DXWKRUV IURP QHZ MXULVGLFWLRQV WR FRQWDFW XV YLD HPDLO DW FRQWDFWLFRQQHFW#JPDLOFRP WR express their interest in producing a report for next year’s Global Review. And, as always, we welcome feedback, recommendations, and questions from our readers. 6 | I•CONnect-Clough Center COUNTRY REPORTS 2018 Global Review of Constitutional Law | 7 Argentina Juan F. González-Bertomeu, Assistant Professor, ITAM Ramiro Álvarez-Ugarte, Assistant Professor. UP/UBA I. INTRODUCTION II. MAJOR CONSTITUTIONAL DEVELOPMENTS In our 2017 report, we described a Supreme Court in flux. Early in 2016, two new jus- :HVWDUWE\DQDO\]LQJZKDWSUREDEO\ZDVWKH tices joined a five-member Court against most important constitutional issue in Ar- 1 the background of broader political change. gentina during 2018: the legislative debate :HWKHUHLQKLQWHGDWSRVVLEOHMXULVSUXGHQWLDO around the legalization of abortion. The de- shifts, involving a redefinition of both the ARGENTINA bate strongly engaged the public and chan- Court’s role in general and its standards on neled constitutional discourse for the better human rights law in particular. In 2017, an part of the year. Next, we will turn to the Su- ostensibly minor decision but with heavy preme Court. implications regarding the policies of mem- ory, truth, and justice concerning human Abortion rights violations during the last dictatorship Abortion is criminalized by the 1921 Crimi- had invited strong popular backlash. In 2018, nal Code in force except for two cases: (a) if and after a legislative intervention, the Su- the pregnancy puts at risk the woman’s life or preme Court revisited its decision, this time health, or (b) if the pregnancy is the outcome amidst turmoil within the Court itself. After of rape (Section 86). The original wording of an eleven-year tenure, Justice Lorenzetti was this second exception was infelicitous, creat- replaced in September as Court President by ing the impression for some observers—in- Justice Rosenkrantz, the member perceived cluding religiously motivated people—that to be most closely aligned with the nation- only pregnancies resulting from rape against 2 al Executive. The move seems to have left mentally deficient women could legally be strangled relationships within the Court and terminated. Both out of uncertainty about the was followed by another power reconfigura- law and ideological pushback, many doctors tion, what may partly account for the relative refused to perform legally permitted proce- paucity of significant cases decided during dures. In 2012, in FAL, the Supreme Court the year. The most important development said the provision applied to rape committed in constitutional politics, concerning the le- against any woman, and that this stemmed galization of abortion, took place outside the from both statutory interpretation and the courts. country’s human rights law commitments. The Court thus attempted to minimize the judicialization of such procedures, ordering all provinces to pass clear guidelines to guar- antee access to legal abortions, a process still facing obstacles. 1 J. F. González-Bertomeu; R. Álvarez-Ugarte, ‘Argentina’ (2018), The I·CONnect-Clough Center 2017 Global Review of Constitutional Law, pp. 13-14, https://papers.ssrn.com/abstract=3215613.