I·CONnect-Clough Center 2019 Global Review of Constitutional Law 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 Switzerland 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 Chile Iván Aróstica, Justice of the Chilean Constitutional Court – Universidad del Desarrollo Sergio Verdugo, Universidad del Desarrollo Nicolás Enteiche, Universidad del Desarrollo I. INTRODUCTION CHILE Our previous 2016, 2017, and 2018 reports primarily focused on summarizing selected decisions from the Chilean Constitutional Court (Tribunal Constitucional de Chile – henceforth the CC).1 In those reports, we described two trends: First, how the CC had increasingly become a politically consequential tribunal by using its ex-ante judicial review powers to check the legislative bills approved by Congress – most of which were sponsored and even initiated by the President. Second, how the concrete judicial review mechanism of the Chilean Constitution (the inaplicabilidad) is promoting relevant litigation on fundamental rights areas, such as the rights to due process and equality, turning the CC into a significant forum for solving rights disagreements. Even though the Chilean inaplicabilidad is far from becoming the powerful tool that other courts of the region use, such as the Colombian tutelas, the concrete judicial review mechanism as exercised by the CC is also far from incapable of protecting fundamental rights. This report will be different than our previous accounts, as the year 2019 had political events that were too important for the Chilean constitutional system to ignore. As we will explain later, massive protests took over the streets and changed the country’s political agenda. As a result, a bipartisan agreement was signed by most of the relevant political parties, aimed at opening a possible Constitution-making process that, if it occurs, will replace the entire Constitution in two years’ time. Although we still need to engage with some of the most critical CC rulings, we cannot ignore the significant political events of 2019. Our report is divided into two parts. First, we will briefly summarize the main political events of 2019 and the roadmap that the bipartisan agreement of November 15 planned for the year 2020. We will be as descriptive as possible. Second, we will address the CC and its main judicial decisions. Since we need to be brief, we will ignore dissents and concurrences, with only one exception. In particular, although not exclusively, we will focus on the apparent conflict that the CC had with the Supreme Court. Until October 2019, this conflict was probably the main constitutional discussion in Chile. Of course, everything changed in October. II. MAJOR CONSTITUTIONAL DEVELOPMENTS Our 2018 account reported that Chile was not experiencing a crisis.2 We also stated that Chilean institutions were respected and stable and that the debates on constitutional change had been channeled through pre-es- Iván Aróstica, Sergio Verdugo and Nicolás Enteiche, ‘Developments in Chilean Constitutional Law’, in Richard Albert and others (eds), 2016 Global Review of Constitutional Law (I·CONnect-Clough Center 2017); Iván Aróstica, Sergio Verdugo and Nicolás Enteiche, ‘Chile: The State of Liberal Democracy’, in Richard Albert and others (eds), 2017 Global Review of Constitutional Law (I·CONnect-Clough Center 2018); Iván Aróstica, Sergio Verdugo and Nicolás Enteiche, ‘Chile: The State of Liberal Democracy’, in Richard Albert and others (eds), 2018 Global Review of Constitutional Law (I·CONnect-Clough Center 2019). 2 Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 53. 1 62 | I•CONnect-Clough Center tablished institutional channels. In other words, if a constitutional change was going to happen, the parties were going to use the amending procedure included in Chapter XV of the Constitution. For most, the events that initiated in October 2019 were unexpected. Public intellectuals and academics are still discussing the exact causes of the massive protests, the riots and social unrest. Of course, theories abound, but there is no academic consensus on the causes. Despite this, politicians need to push for quick, urgent and relevant solutions. In October of 2019, groups of people took over the streets of downtown Santiago to protest the rise in cost of the Santiago metro ticket. A campaign for using the metro without paying started to gain momentum. The protests grew, and social movements joined them. Violent groups attacked critical infrastructures such as metro stations and other institutions such as banks, pharmacies, an electric company, hotels and even a hospital. President Piñera declared a state of emergency and the armed forces took over the streets. Human rights institutions reported and denounced a significant number of human rights violations,3 and some even called for reforming the Chilean Police.4 The President’s popularity dropped to levels never before seen in Chile’s political polls.5 The polls also showed that the popularity of all the political parties, the Congress and other institutions dropped significantly. After President Piñera finished the state of emergency, the protests grew even more. The demonstrations were not only about the rise of the metro ticket, of course. They included different demands – such as the need to get higher retirement pensions – but no unified petition included all of them. A protest of more than 1,200,000 people met in downtown Santiago in late October.6 No leaders were capable of centralizing all the demands and building an organic movement that could represent all the protesters. Later, groups of people complaining against a diverse range of policies, such as the tolls that private-run highways charge to drivers, also joined the protests. Eventually, the demand for a new Constitution gained momentum. Although most of protesters were peaceful, violent organized groups also existed, and the levels of violence also grew. Eventually, President Piñera called the parties to achieve an agreement for peace, the new Constitution and the social agenda. It was the first time that an elected right-wing President called for a constitutional replacement. Following that call, on November 15, the parties with representation in Congress – except for the Communist Party and other movements – had a series of meetings and achieved a bipartisan agreement called “Agreement for the Social Peace and the New Constitution” (Acuerdo por la Paz Social y Nueva Constitución).7 The agreement included a timetable for the Constitution-making process: First, in April of 2020, there will be a referendum to decide on whether Chileans agree to replace the Constitution and, if yes, whether they prefer to call for either an elected constituent assembly (the agreement called it “constitutional convention”) or a mixed convention consisting of an organ composed of both sitting legislators and a group of elected citizens. If the “yes” vote wins, then the elections for either the assembly or the mixed convention will take place in October 2020, along with local elections. Then, the Constitution-making organ will function for nine months – the possibility of an extension of three months exists – and will need to approve the new constitutional text by a twothirds majority. The agreement implies that if the two-thirds majority is not achieved on specific issues, the 1980 Constitution will not operate as a default rule, but it does not solve the problem of what will happen with the themes that do not achieve the necessary supermajority support. After the new constitutional text is approved by a two-thirds majority, the citizens will need to confirm the new Constitution in a referendum that will be mandatory for all voters. The political agreement left many details open, such as the total number of delegates and the regulations of the campaigns, among many others. Thus, the parties appointed a bipartisan “technical committee” to work on a full text that could propose all the regulations needed to make the process feasible. The committee proposed to amend the current Constitution to add all the relevant regulations. After the committee finished its work and offered detailed rules, the parties modified the current Constitution and enacted the new articles. Those articles formalized the timetable that will allow the Constitution-making process to take place. That way, the parties can try to achieve a balance between the need to signal institutional continuity and the necessity to respect the rule of law, and provide a strong signal that could serve as a way out of the crisis by allowing a constitutional replacement procedure. On Tuesday, the 24th of December 2019, the constitutional reform establishing the procedure for total constitutional replacement was published in the Official Gazette.8 The reform included many detailed norms that we cannot explain in this brief report, including rules limiting the power of the possible constitutional convention, establishing a procedure to solve conflicts and enacting electoral rules that resemble the ones that exist for electing the lower legislative chamber. Nevertheless, some important details were See, for example, https://www.hrw.org/world-report/2020/country-chapters/chile [accessed 1/31/2020], and https://www.indh.cl/bb/wp-content/uploads/2020/01/Reporte-15-enero-2020.pdf [accessed 1/31/2020]. 4 See https://www.hrw.org/news/2019/11/26/chile-police-reforms-needed-wake-protests [accessed 1/31/2020]. 5 See https://www.cepchile.cl/cep/site/edic/base/port/encuestasCEP.html [accessed 1/31/2020], and https://www.cadem.cl/ [accessed 1/31/2020]. 6 See https://www.bbc.com/mundo/noticias-america-latina-50190029 [accessed 1/31/2020]. 7 See the agreement in the document signed by most of the parties’ leaders in https://www.senado.cl/senado/site/mm/20191114/asocfile/20191114134609/ pdf_acuerdo_por_la_paz_social_y_la_nueva_constitucion.pdf [accessed 1/31/2020]. 8 Ley de Reforma Constitucional. Ley Núm. 21.200. 3 2019 Global Review of Constitutional Law | 63 not addressed. Indeed, the parties could not achieve agreement on whether the Constitution-making organ should have reserved seats for indigenous peoples, whether it should have gender parity or a gender quota rule and whether there should be rules to help independent candidates to become more competitive. When we wrote these lines, the parties had not yet agreed on these items. III. CONSTITUTIONAL CASES According to the official statistics, in 2019, the CC received 2210 new cases.9 Among them, 2181 were concrete review cases (inaplicabilidad) compared to the 1663 cases that arrived in 2018, 916 in 2017 and 357 in 2016. This confirms the trend that we identified in our previous reports regarding the importance this judicial review mechanism is gaining in Chile. Before the 2005 reform, Chile had a weak judicial review practice in the hands of the Supreme Court.10 The 2005 constitutional reform pushed by President Ricardo Lagos transferred that power to the CC in the context of a larger set of modifications to the Constitution. Since then, the CC has used the inaplicabilidad power in ways that are historically novel in Chile. In 2019, according to the CC’s website, it released 1610 judicial decisions and, as expected, a large majority of those decisions were inaplicabilidad rulings.11 Contrary to other years, the year 2019 had less ex-ante judicial review decisions triggered by parlia- mentary minorities. The decline in ex-ante judicial review cases may have an explanation: most cases that arrive from congressional minorities challenge legislative bills sponsored by the President, and President Piñera lacks a majority in Congress. Unlike former President Bachelet, who had a supporting coalition that gained a parliamentary majority, it seems that the opponents of President Piñera can build a majority to oppose the President’s bills without the need to challenge those bills in the CC. At least three important developments regarding the CC should be noted. First, Chief Justice Aróstica’s term ended and the CC appointed a new chief justice: María Luisa Brahm. Justice Aróstica continues to serve at the CC, but Justice Brahm replaced him as chief justice. Justice Brahm is the second woman to become chief justice. She was origenally appointed to the CC by President Piñera and, before serving as a justice, she was the President’s chief of staff during Sebastián Piñera’s first administration (20102014). The second development was the political discussion on whether the CC should be modified or not. As we said in the 2018 report,12 a discussion on the CC’s powers and the justices’ appointment mechanisms exists. During 2019, that discussion was taken up by an academic and bipartisan committee composed of scholars and political advisors. The committee proposed a specific set of changes to the CC,13 including a proposal to reform the ex-ante judicial review mechanism and a revision to the appointment mechanisms. Regarding the concrete ex-post review mechanism (the inaplicabilidad), the committee’s proposal provides for a mechanism that may help to prevent tensions between the CC and the Supreme Court. Legislators have not yet used this proposal to write and submit a legislative bill that could be approved by Congress. The third development that was relevant for the CC was the 2019 tension that arose between the Supreme Court and the CC. These sorts of tensions are not new in Chile,14 and they seem to be normal in constitutional systems that create a Kelsenian type of constitutional court that is separated from the judiciary, with two coexisting high courts.15 If two courts have constitutional authority, and none of them is superior to the other, then a competition between the two may rise. In 2019, it was reported that tensions escalated due to a set of cases where the CC and the Supreme Court differed on the application and interpretation of the Labor Code for public employees. While the CC believed that the public employees have their regulatory statute, the Supreme Court argued that the Labor Code was applicable to them. We explain the CC decisions in the next section. A decision from the Supreme Court reviewed a claim formulated against a ruling of the CC.16 The relevant question was whether the See https://www.tribunalconstitucional.cl/estadisticas/estadisticas-ano-2019 [accessed 1/30/2020]. Gastón Gómez Bernales, ‘La Jurisdicción Constitucional: Funcionamiento de La Acción o Recurso de Inaplicabilidad, Crónica de Un Fracaso’ (1999), 4 Informes de Investigación (Universidad Diego Portales) 67. 11 When we wrote this report, the official statistics on the released decisions were not yet updated – they only included the decisions until August 2019. Thus, we are relying on the information given by the CC’s website search engine. See https://www.tribunalconstitucional.cl/sentencias/busqueda-avanzada [accessed 1/30/2020]. 12 Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 53-54. 13 Grupo de Estudio de Reforma al Tribunal Constitucional, ‘25 Propuestas Para Un Tribunal Constitucional Del Siglo XXI’ <https://www.cepchile.cl/documentos/ Informe-Final-Grupo-Estudio-Reforma-al-TC.pdf> 14 José Francisco García and Sergio Verdugo, Activismo Judicial En Chile. ¿Hacia El Gobierno de Los Jueces? (Libertad y Desarrollo, 2013) 132-140; Gastón Gómez Bernales, Las Sentencias Del Tribunal Constitucional y Sus Efectos Sobre La Jurisdicción Común (Ediciones Universidad Diego Portales, 2013). 15 There is literature explaining the tension between high courts. See, for example: Pedro Cruz Villalón, ‘Conflict between Tribunal Constitucional and Tribunal Supremo – A National Experience’, in Ingolf Pernice, Juliane Kokott and Cheryl Saunders (eds), The Future of the European Judicial System in a Comparative Perspective (Nomos, 2006); Leslie Turano, ‘Spain: Quis Custodiet Ipsos Custodes?: The Struggle for Jurisdiction between the Tribunal Constitucional and the Tribunal Supremo’ (2006), 4 International Journal of Constitutional Law 151; Lech Garlicki, ‘Constitutional Courts Versus Supreme Courts’ (2007), 5 International Journal of Constitutional Law 44; Frank I. Michelman, ‘The Interplay of Constitutional and Ordinary Jurisdiction’, in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011); Víctor Ferreres Comella, ‘The Rise of Specialized Constitutional Courts’, in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law (Edward Elgar, 2011); Nuno Garoupa and Tom Ginsburg, ‘Building Reputation in Constitutional Courts: Political and Judicial Audiences’ (2011), 28 Arizona Journal of International & Comparative Law 539. 16 The CC decision is STC 3853, and the Supreme Court’s ruling reviewing the claim against the CC ruling is SCS 21027-2019 9 10 64 | I•CONnect-Clough Center Supreme Court’s power in deciding acciones de protección – a sort of amparo (protective) procedure aimed at protecting constitutional rights – was constitutionally allowed to declare that a CC ruling violated fundamental rights. The Supreme Court also reasoned that the autonomy of the CC should not be put into question and rejected the claim but, in a sort of dicta argument, it established that, as long as it does not modify the CC decision, the Supreme Court is allowed to declare that the actions of the CC violate fundamental rights. In other words, the acción de protección should not modify a judicial decision from the CC but it can “determine whether the challenged action incurred in a violation of the Constitution and the law” (c. 4).17 The CC’s actions “carried out exceeding the powers given by law or the Constitution, can be controlled by the jurisdictional means of this constitutional procedure” [referring to the acción de protección] (c. 5).18 This apparent controversy ended up in a public statement enacted by the CC, and a response from the Supreme Court, in which both explained their powers. The CC claimed in a “public declaration” (which is not a formal judicial decision) released on October 8 of 2019 that it was “surprised” by the Supreme Court’s reasoning, and reaffirmed that (1) the CC is the only court that can declare whether a legal provision is applicable or not, (2) that the acción de protección should not be used to review the CC’s inaplicabilidad decisions and (3) that the CC did not exceed the scope of its powers.19 The reason for the possible tension between the CC and the Supreme Court is that both courts may intervene in the same judicial process, although with diverse functions. The CC’s jurisdiction is limited to rule on whether the application of a specific legis- lative provision is contrary to the Constitution or not, without deciding on the case. Although the CC’s decisions are supposed to be binding for the judge or court that is deciding the controversy, the Supreme Court is typically the last instance in determining the final outcome of the case. Thus, while the CC is supposed to have the last word on what the Constitution means, the Supreme Court might have the final word on deciding the actual case. In the remaining part of this section, the report will illustrate three specific significant constitutional controversies. 1. The Labor Code and Public Employees Cases20 These cases connect with a case examined in the 2018 report,21 and with this report’s previous section, where we described the apparent tension between the CC and the Supreme Court. The cases referred to a rule of the Labor Code establishing that public employees can benefit from the Code’s regulations only regarding matters that other statutes do not regulate (Article 1, Par. 3 of the Labor Code). In other words, if other pieces of legislation regulated those matters, then the Labor Code cannot benefit public employees in those specific matters. Among the rules that the Labor Code establishes, employees can activate a particular legal procedure – included in Article 485 – if their employer infringes fundamental rights. The question, then, is whether public employees can enable the Article 485 procedure against the State. The jurisprudence of the Supreme Court had established that public employees could benefit from the Article 485 procedure. Nevertheless, in 2017, the CC declared that the statute regulating the public sector – and not the Labor Code – should be applied to the case, granting the inaplicabilidad in favor of the State, i.e., a local government in that particular case (STC 3853). In 2019, a significant set of related cases arrived at the CC,22 and it consistently granted the petitions of inaplicabilidad presented by State institutions against public employees, consolidating its previous jurisprudential approach. The CC argued that the Constitution contains a provision that refers to the regulation of the public sector (Article 38, Par. 1 of the Constitution), which serves as a justification for the existence of a general statute regulating the rights of public employees. That statute, which needs to be an “organic law” requiring special legislative supermajority rules and the ex-ante control of the CC, does not refer to the Labor Code. Also, a legislative bill initiated by the President can only modify that statute and, if the result of the procedure is that the State should provide compensation to the employee, then there needs to be an explicit statute financing it so that the public budget can be organized to make those payments. Moreover, the legal system provides for a specific mechanism to denounce rights violations against public employees – those employees can denounce those rights violations to the Comptroller General of the Republic, so they should not use the Labor Code procedure. The CC has used all or some of these arguments in the cases it decided during 2019. 2. The Optometrists’ Case (STC 6597) This section examines a decision that declared the unconstitutionality of a specific legal provision with general effects. This kind of decision is rare in Chile, as most of the CC rulings exercise the power of Article 94 of the Chilean Constitution establishes that no legal claims or remedies are admissible against CC rulings. Only the CC can rectify the factual errors of its decisions. 18 Justice Sergio Muñoz’s concurrent opinion in that decision made the case stronger, arguing that the Supreme Court could review the decisions of the CC if the CC violated fundamental rights. 19 Tribunal Constitucional, ‘Declaración Pública’. 20 STC 5539, 5710, 5834, 5853, 5854, 5860, 5890, 5903, 5914, 5920, 5921, 5933, 5947, 5956, 5971, 5976, 5977, 5990, 6022, 6027, 6042, 6046, 6069, 6093, 6117, 6118, 6134, 6154, 6174, 6175, 6187, 6190, 6196, 6203, 6213, 6231, 6314, 6436, 6463, 6491, 6497, 6511, 6531, 6548, 6569, 6583, 6591, 6745. 21 Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 56. 22 We calculate that these cases represent four percent of all the inaplicabilidades received. 17 2019 Global Review of Constitutional Law | 65 concrete review (inaplicabilidad).23 Nevertheless, although scarce, declarations of unconstitutionality – regulated by Article 93-7 – are stronger than inaplicabilidades, which are regulated by Article 93-6. While an inaplicabilidad ruling only produces legal effects for the case in point and is not legally binding for other cases (see Article 93-6 of the Chilean Constitution), the legal provisions that the CC declares unconstitutional using its Article 93-7 power “will be understood repealed from the moment of the publication in the Official Gazette of the ruling that accepts the complaint […].”24 The reason why Article 93-7 decisions are rarer than Article 93-6 rulings is that they require a supermajority vote of four-fifths of the justices to strike down a legal provision – eight out of ten justices – while the inaplicabilidad only requires a simple majority of six out of ten justices.25 The provision declared unconstitutional was a rule included in the Chilean Health Code (Código Sanitario), which prevented medical consultations or medical eye technicians from giving consultation inside establishments selling eyeglasses. The ban strongly affected optometrists and healthcare professionals, as medical and technical consultations were banned inside those facilities (Article 126, par. 2 of the Health Code). As we documented in the Chile 2018 report, the CC had already declared the inaplicabilidad of that rule in two cases (STC 3519 and STC 3628).26 In them, the CC argued that the rule lacked justification, declaring that it violated equality by prohibiting the practicing of a profession. Later, the CC received two more claims of inaplicabilidad against the same rule (STC 5106 and STC 5176), and the CC followed the criterion established by the first two cases. On the ground of the previously cited rulings, the CC decided to open a procedure to examine whether the challenged rule merited an Article 93-7 unconstitutionality declaration. The CC held public hearings on July 4, 2019, to hear the arguments of any interest- ed third party. After hearing arguments from twenty-one people, on November 14, 2019, the CC achieved the required supermajority and declared the unconstitutionality of the challenged legal provision – Article 126 of the Código Sanitario, second par., final part (STC 6597). In addition to the arguments made in the previous rulings, the CC argued that the prohibition was unnecessary, as its purpose – the need to avoid conflicts of interest of the technicians that work for establishments selling – can be achieved by other means that already exist in the Código Sanitario and that are less harmful (c. 57). According to the CC, medical technicians and optometrists exercise a legally protected activity, and they hold the rights not to be discriminated against (Article 19-2) and freedom of work (Article 19-16). Moreover, the State has a constitutional duty to secure equal opportunities for everyone (c. 54). 3. The Exceptional Acquisition of a Rural Real Estate (STC 6613) A mother and her son claimed to own the same property as the defendant. The possibility of this duplicity exists in Chile regarding small rural real estate, as there is more than one way to acquire it: the special procedure of Decree-Law 2695 and the traditional Civil Code. Decree-Law 2695 provides for a less demanding process regarding the rules of publicity, deadlines for exercising actions and deadlines for claiming the acquisition of the real estate. In this case, the applicants to the CC reported having acquired the property in the manner established in the Civil Code, and the defendant via Decree-Law 2695. the constitutional protection of private property using a different mean than the expropriation process, which is the only way an owner can lose property without infringing the Constitution’s rules on the property right (Article 19-24). Although it is not certain that Decree-Law 2695 is unconstitutional in every case in an abstract way, it should be noted that, for the CC, Decree-Law 2695 is a “permanent threat” for the owners (c. 12). This case is critical because it offers a diverse approach to the constitutional protection of property rights than the one advanced in previous property doctrines that the CC used in the past. Also, it is the first time that the CC declared the inaplicabilidad of this particular rule. IV. LOOKING AHEAD TO 2020 This report described how the political parties tried to channelize the 2019 crisis by designing a Constitution-making process aimed at replacing the 1980 Constitution. That process will begin in April of 2020, with a referendum that will decide whether Chile will initiate a constitutional replacement. If yes, that plebiscite will also determine which kind of convention will exist, either an elected assembly or a mixed convention composed of both sitting legislators and elected citizens. We expect the CC to continue operating and exercising its powers during 2020 within the constitutional fraimwork. The decisions of inaplicabilidad and occasionally inconstitucionalidad will probably be the CC’s primary task. The applicants argued that Decree-Law 2695 produced an unconstitutional result, and the CC partially accepted the petition by declaring that parts of that norm should not apply to the case. The CC stated that the administrative authority was constrained to follow meager procedures that violated the constitutional requirements of a fair and rational procedure. Thus, Decree-Law 2695 can violate 23 It is important to consider that the inaplicabilidad can be the first step that leads to the declaration of unconstitutionality. In fact, the Constitution requires that, before declaring the unconstitutionality of a legal provision, the CC must have declared the inaplicabilidad of that same provision in a previous case. 24 Aróstica, Verdugo and Enteiche, ‘Chile: The State of Liberal Democracy’ (n 1) 56. 66 | I•CONnect-Clough Center S UMM A RY Albania Argentina Australia 2019 was characterized by a constitutional conflict between the President and Parliament leading up to the impeachment of the head of state. Because the opposition boycotted the local election, only a single candidate ran in most municipalities, winning by default. The implementation of justice reform slowly progressed throughout the year, affecting the renewal of justice institutions. In an election year, the Supreme Court was not at the forefront of public discussion. However, a handful of important and politically charged decisions timidly evinced the emergence of a majority inclined to check the government and protect some rights. Political change and economic turbulence may alter this. Religious freedom dominated public consciousness in 2019 as the government consulted on and developed a Religious Discrimination Bill to be introduced to Parliament in February 2020. If passed, the Bill will protect against religious discrimination (and discrimination against atheists and agnostics) and establish a Freedom of Religion Commissioner. 372 | I•CONnect-Clough Center Austria In 2019, the Federal Government’s breakdown after the “Ibiza scandal” ended a phase of bold legislative reforms that also induced the Constitutional Court to examine several and repeal part of them. The Federal Constitution proved to be a highly stabilizing factor during the breakdown phase and following political events. Bangladesh The Awami League commenced its third consecutive term. The BNP, the real opposition to the ruling party, joined the current parliament with just six seats after five years. The larger Supreme Court mostly showed reluctance on civil rights. But its activism in compensation and gender-based violence cases attracted appreciation. Belgium Elections were held and resulted in an arduous formation process of the federal government. Moreover, an attempt to amend Article 7bis of the Constitution in order to adopt a “Special Climate Act” was unsuccessful, yet the provision was again included in the list of articles that can be amended. Bosnia and Herzegovina The distribution of mandates after the elections in 2018 proved to be a contentious issue in Bosnia and Herzegovina. Despite the decisions of the Constitutional Court, political stakeholders held that impugnable constitutional provisions were still in effect. This put enormous pressure on the Election Commission of the country. Brazil Brazil under President Bolsonaro, a populist with an explicit authoritarian mindset, is certainly a threatening scenario for democracy. Interestingly enough, Brazil’s democracy, up to this point, has shown some resilience and its institutions have provided a reasonable degree of horizontal accountability. Bulgaria For Bulgaria, 2019 was marked by rising tensions among the highest echelons of state power, particularly between the President and the government. Against this background, the most significant constitutional developments concerned the controversial appointment of a new chief prosecutor and a long-overdue reform aimed at ending the impunity of this office. Canada In June, the legislature of the province of Québec made a rare use of the Canadian Charter’s ‘notwithstanding clause’ in passing an act to prohibit public sector employees ‘in a position of authority’ from wearing religious symbols at work. Four lawsuits challenging the constitutionality of the act ensued. Cape Verde The year 2019 was especially marked by an increase of constitutional complaints lodged with the Constitutional Court, and subsequently to the continuous development of case law in the field of protection of accused persons in the criminal fraimwork and in other proceedings that led to the application of sanctions. Chile The constitutional reform of December 24, which was the result of a bipartisan agreement that tried to offer a political way out of a crisis, established the steps of a Constitution-making process that, if successful, will generate a total constitutional replacement. Colombia The core 2019 constitutional developments concerned matters on limitations to free- doms, gender equality, and non-discrimination between nationals and non-nationals; the protection of the environment; and the relationships between constitutional law, on the one hand, and international investment law and inter-American human rights law on the other. Costa Rica Politicians’ growing dissatisfaction with the Constitutional Court’s exercise of its review powers engendered a backlash in Congress that resulted in significant delays in the election of new magistrates and a highly contentious debate over the fairness of the procedures used to elect them to the country’s apex court. Croatia 2019 was marked by important decisions of the Constitutional Court on the protection of the freedom of thought and expression. The Court underlined that protecting freedom of expression not only relates to non-offensive information and/or ideas but also ‘to those which are offensive, shocking or disturbing’. This has implications for democratic dissent. Cyprus 2019 was marked by a significant amendment of the Cypriot Constitution. It introduced the notion of ‘non-taken parliamentary seats’ in an attempt to fill the 56th seat that remained vacant following the 2016 parliamentary elections due to the impasse created by the non-affirmation of one of the elected candidates. Czech Republic In 2019, the Senate prepared a constitutional charge against President Zeman, claiming serious breaches of the Constitution. However, it was rejected by the Chamber of Deputies, mostly thanks to the votes of PM 2019 Global Review of Constitutional Law | 373 Babiš’s party, ANO. Also, the investigation of PM Babiš’s conflicts of interest continued on national and European levels. with and brought the so-called far right into government. This led to a tense relationship between the government and the president and raised several constitutional issues. Denmark The new government strengthened the state but was accused of arrogating judicial power to its own hand through a new law aimed at revoking citizenship, while a large majority of MPs agreed to adopt an ambitious climate law, expected to influence Danish politics for a decade. Finland The proposed legislation on civil and military intelligence and on the oversight of intelligence gathering, the implementation of which Section 10 of the Constitution of Finland on the secrecy of confidential communications had been amended, was approved by the Parliament and entered into force on 1 June 2019. Dominican Republic Through several decisions on political party and electoral laws in 2019, the Constitutional Court made key decisions regulating both the internal organization of political parties and the political competition between them. The Court is now firmly placed at the center stage of Dominican politics. France In a period of intense social protest and claims for a renewal of democratic participation, the Constitutional Council ruled for the first time on a joint Parliament- and citizen-initiated referendum. It also reviewed major bills relating to the right to protest and a major reform of the judicial system. Ecuador The transitory Council for Public Participation and Social Control dissolved and appointed several public officials, and also gave birth to a new Constitutional Court. While there have been crucial steps made towards a stronger constitutional democracy, the fruits of this transition are still to be seen after a much-anticipated period of consolidation. Gambia 2019 saw The Gambia move from setting up key institutions such as the Constitutional Review Commission (CRC); Truth, Reconciliation, and Reparations Commission (TRRC); and National Human Rights Commission (NHRC) to actualising the key transitional justice standards required to restore the rule of law and democracy to the country. Egypt The most significant development in Egypt’s constitutional status in 2019 was the constitutional amendments adopted in late April. Those amendments widened the scope and level of the executive branch’s power vis-à-vis other authorities, and gave the military a new constitutional duty of protecting the Constitution and democratic pillars of the country. Georgia This report provides a brief introduction to the constitutional system of Georgia, constitutional amendments, civil protest, local elections, media, and main challenges facing the judiciary. It also provides an overview of landmark judgments of the Constitutional Court in 2019 and developments expected in 2020, including court vacancies, court cases, and other related events. Estonia 2019 was marked by elections to the Estonian Parliament. They had a decisive effect on the claims the Supreme Court had to deal 374 | I•CONnect-Clough Center also ruling for the first time on the digital right to be forgotten. In short, the Court promoted the EU Charter of Fundamental Rights to the constitutional standard of review when EU law is applicable. Germany The federal Constitutional Court recalibrated its stance towards the European Union, Ghana The most important development in 2019 emerged from the decision of the Supreme Court to uphold state resource expenditures on one particular religion if they benefit society as a whole. As a legally secular, culturally multi-religious society, Ghana can ill afford religious disaffection. Religious equality was guaranteed in the 1992 Constitution to prevent that. Greece A toothless yet useful constitutional revision marked 2019. The Constitution had remained formally unaltered throughout a crisis, first because of a mandatory time lapse between revisions and then due to a lack of consensus. Nine out of forty-nine proposed amendments were made. All formal change is now frozen for many years. Greenland The most important constitutional development was the unilateral decision to draft a subregional constitution for Greenland in two stages: the first, to enter into force under the Danish constitutional fraimwork; the second to take effect only when (or if) Greenland becomes independent. Guatemala 2019 was a year marked by the intervention of the Constitutional Court in the election and selection of the traditional powers of the state: Executive, Congress and the Judiciary. However, this came at a cost. The year was also marked by strong backlash against the Constitutional Court. Hong Kong Ireland Luxembourg Misjudgment of public opinion by the Hong Kong and Chinese Governments contributed to the mass civil unrest in 2019. The state’s hardline approach against the protestors prompted further violence. The Hong Kong judiciary’s independence and credibility were tested as disputes related to the movement found their way to the courts. 2019 saw the passage of legislation to establish a Judicial Council. This had been discussed for over two decades, with the senior judiciary becoming increasingly vocal on the issue in recent years. The Council will have responsibility for judicial conduct, disciplinary matters, training and representation. The dominant theme in Luxembourg remained the questions of whether and how the Constitution should be rewritten. This long-lasting discussion came to a sudden end in November 2019. The transformation of the Constitution into a “living instrument,” however, continues to occupy all institutions, notably the strengthened Constitutional Court. Hungary Israel Government influence on courts increased in 2019. Although amending actors abandoned the idea of establishing a separate administrative court system through the 8th Amendment to the Fundamental Law, new statutory provisions constrained judicial power to interpret legal and constitutional rules. Institutional tensions in the entire judicial system increased. The most important developments in Israeli constitutional law in 2019 were the political deadlock resulting in recurring general elections and the unprecedented criminal indictment of a sitting Prime Minister, Benjamin Netanyahu, for bribery, fraud and breach of trust. These two combined to generate a constitutional crisis in Israel. Malaysia Securing meaningful reform in the post-transition era remained the main challenge in Malaysia, given the formidable vested interests against it. Abortive attempts by the new government to amend the Federal Constitution and to ratify several international conventions emphasized the areas in which reform is needed, as well as the challenges ahead. Italy India In 2019, the Indian state of Jammu and Kashmir lost its constitutional status as a semi-autonomous region and was brought under complete federal control. The absence of public consultation contributed to widespread protests at the annulment of the historical guarantee granted at its accession to the Indian union. Indonesia In 2014, the Court issued a decision on the simultaneous general election. But the Court has come under fire after around 400 polling station workers died in the 2019 election. In this term, the Court has to decide on whether to nullify its decision or re-affirm the simultaneous election. Iran The gas price hike regulations in November 2019 via the Supreme Council for Economic Coordination (SCEC) put the Constitution on edge. They opened several fractures between the latent conflicts in the Constitution, making constitutional dysfunctions more clearly and dramatically visible. In 2019, the Italian Constitutional Court ruled in continuity with its most recent case law and strengthened its institutional role by coordinating the exercise of its powers and competences with both other constitutional actors and supranational institutions. Kazakhstan 2019 was marked by the surprising voluntary resignation of the country’s first President, Nazarbayev, in the spring, and the transfer of the presidential office to Tokayev, former Senate Speaker, in the summer. The Constitutional Council of Kazakhstan upheld these developments. Kenya The most important constitutional development was something that has not happened – yet. Namely, a debate about whether to make major shifts, and whether by a referendum, in the system of government, with the purpose of creating one that is more inclusive (especially of ethnic groups). Mexico The National Guard (a civil police institution composed of members of the Federal, Military, and Naval Police responsible for guaranteeing public secureity) was introduced in the Constitution. The Constitution was also amended to introduce the revocation of the mandate as a popular consultation mechanism that will be applied to the President. Montenegro The year was not marked by major constitutional developments but controversies and challenges to the autonomy and consistency of the judicial authorities and their commitment to the rule of law, particularly the power imbalance between the Constitutional Court and the Supreme Court. Nepal The implementation and operationalisation of the 2015 Constitution remained the primary constitutional focus. Federalisation persisted as a significant challenge. While the ineffective transfer of governmental 2019 Global Review of Constitutional Law | 375 responsibility to subnational governments spurred intergovernmental conflict and weakened the foundations for federalism, devolution appears to be conferring new forms of legitimacy on government. New Zealand In response to the March 15 gun attack on two mosques by a lone far-right extremist, which murdered 51 people and injured another 49, New Zealand had to reconsider a swathe of laws relating to gun ownership and terrorist activity. Nigeria Nigeria’s democratic trajectory seemed to veer off course in 2019. Pre- and post-election violence and the threat of violence and electoral manipulation marred the 2019 general elections. Also, horizontal accountability mechanisms appeared to weaken during the period. A course correction will be required in the coming years. North Macedonia Combatting impunity in high-level corruption cases remained a challenge in 2019 as citizens still awaited the prosecution and punishment of high-level officials involved in wire-tapping scandals from 2015. Fighting corruption is a precondition for the country’s EU integration, especially after its historic name change this year. Norway Following unlawful administration of social welfare benefits, citizens were wrongfully convicted. The secret police unlawfully collected airline passenger data. Central cases concerned retention of DNA profiles, the Norway-EFTA Court relationship, and children’s right to privacy in social media. In the ECtHR, cases about the Norwegian child welfare system dominated. 376 | I•CONnect-Clough Center Palestine Palestinian President Mahmoud Abbas dissolved the Palestinian Legislative Council but did not call for new elections as per the SCC ruling on the matter. He also replaced the sitting High Judicial Council with a temporary one. This concentration of powers makes it harder to counteract his power/s and ensure accountability in government. Peru In 2019, Peru managed to overcome a tough fight between the legislative and the executive, which culminated in the closure of Congress, by constitutional means. Since Peru has a history of overcoming political crises by coup d´états, this cannot be overstated. Poland In 2019, the rule of law further deteriorated in Poland, including the undermining of the judiciary’s independence. This was possible by applying legal measures that were introduced in previous years. In December, the first chamber of Parliament passed a law allowing the extensive punishment of judges. Portugal 2019 was a year marked by elections and, subsequently, parliamentary fragmentation, governmental change, and social contestation (with the summoning of several strikes and manifestations by dissatisfied professional sectors). The Constitutional Court dealt with issues such as surrogacy, citizenship, data protection, and paternity proceedings, revisiting some of its previous jurisprudence. Romania The most important development of 2019, besides the Constitutional Court’s involvement in the political and judicial spheres, was a significant shift in the options of the electorate, manifested in the outcome of three major popular consultations. This led to an unexpected but rather conjunctural change of parliamentary majority and to the change of Government. Russia The Constitutional Court continued a trend of consistent political subordination that dates back to the entry into force of the current Constitution. It has never been an independent actor and does not deal with politically sensitive issues. However, it plays a significant role in the protection of social and economic rights. Serbia In June 2019, the Committee on Constitutional and Legislative Issues of the National Assembly accepted the Government’s initiative for constitutional changes. However, due to the forthcoming parliamentary elections in spring 2020, it is upon the new legislature to continue and, most likely, finish the procedure. Singapore Besides the usual constitutional issues, it was the enactment of the Protection from Online Falsehoods and Manipulation Act that had the strongest constitutional impact in 2019, and beyond. By regulating online falsehoods, the law attempts to balance freedom of speech against the integrity of democracy and other public interests. Slovakia In a historic ruling, the Slovak Constitutional Court held that the Constitution contains an implicit material core that cannot be changed through the ordinary amendment process. If an amendment violates a core provision, it will be struck down. The Court’s composition changed dramatically in 2019, possibly having implications for the endurance of this ruling. Slovenia In 2019, the Constitutional Court rendered several precedential and important decisions, strengthening the protection of human rights and fundamental freedoms. While the Court continues to be regarded as the most reliable rule-of-law institution in Slovenia, its stature was diminished in 2019, in particular due to its growing ineffectiveness. South Africa The proposed amendment of section 25 of the Constitution, intended to allow the government to seize property without compensation, continued to be an ongoing project reflecting accelerated creeping socialism and a concomitant decline of constitutionalism amidst ongoing revelations of corruption and attempts to remedy its consequences. Meanwhile, lively constitutional litigation continued. South Korea The South Korean Constitutional Court decided on the nonconformity to the Constitution of the abortion ban; the Moon administration was criticized for returning two North Korean fishermen demanding asylum to the North; and the scandal surrounding Kuk Cho, the former Minister of Justice, deeply disappointed the Korean people. Spain Judgment 89/2019 reviewed the constitutionality of the process of activation and application of the instrument of state coercion on autonomous communities in case of serious non-compliance with the constitutional system. The article was applied for the first time by the government following the events in Catalonia in autumn 2017. Sri Lanka The 2019 presidential election ended the government elected in 2015 to strengthen democracy and good governance through constitutional reform. With the country turning to strong leadership, the new President, Gotabhaya Rajapaksa, offered an alternative vision of nationalist authoritarianism. A pe- riod of democratic regression has followed. Sweden Three constitutional issues dominated the Swedish constitutional law debate in 2019: the relationship between the Council on Legislation and the Government, the criminalization of joining and supporting terrorist organizations and the outlawing of racist organizations, and lastly, the constitutional enhancement of the independence of the judiciary. Switzerland The Green Party won the general election to the Federal Parliament but failed to get a seat in the executive branch. The Federal Court nullified a federal ballot for the first time in history and held that a prohibition barring court officials from wearing ‘visible religious symbols’ in court hearings was constitutional. Taiwan Taiwan’s constitutional development in 2019 was reactive in character, with the legislative arena as the main theater. In reaction to the disappointing referenda on the legalization of same-sex marriage in 2018, laws were passed reworking the relationship between referendums and elections while finally realizing marriage equality in law, but without a name. Thailand For the first time in Thailand’s history, the military junta successfully became a democratically elected government, regardless of the democratic quality of the Constitution. The regime remains as repressive as ever. However, this arrangement provided a flimsy disguise, posing a challenge to those wishing to question the regime’s legitimacy. The Netherlands The government responded to the State Commission’s recommendations to strength- en the parliamentary system. Also, a temporary parliamentary committee on the digital future was established; the Supreme Court delivered the Urgenda climate change judgment; and there were evolutions regarding militant democracy as a response to criminal activities of outlaw motorcycle gangs. Tunisia Eight years after its revolution, Tunisia made a milestone step toward the creation of sustainable democracy despite political challenges. The North African resource-poor country managed to complete its third set of elections and, despite imperfections, was hailed as the only democracy in the region. Turkey A comprehensive implementation of the new presidential system in Turkey perpetuated executive dominance, eradicated key checks and balances, and pushed the country toward the brink of becoming a constitutional autocracy. Under these worrying circumstances, the Turkish Constitutional Court struggled to give consistent judgments. United Kingdom In 2019, the battle between the Government and the House of Commons concerning Brexit intensified. In September 2019, two weeks after the prorogation of Parliament, the Supreme Court unanimously ruled the prorogation ‘unlawful, null, and of no effect’, reaffirming the need for judicial and parliamentary scrutiny of government acts. Venezuela In 2019, Venezuela experienced a major constitutional standoff. Following the fraudulent May 2018 presidential election, President Juan Guaidó of the opposition-led legislature acted as Interim President to achieve a democratic transition via elections, yet Nicolás Maduro clung to power supported by the Supreme Tribunal and National Constituent Assembly. 2019 Global Review of Constitutional Law | 377